Photo Credit: Maria Dryfhout

U.S. District Judge Jesse Furman of the Southern District of New York made it clear Wednesday that he sees proceeding to trial over the Trump administration's plan to ask about residents' citizenship status on the 2020 Census makes sense, even as he opted not to rule on the Department of Justice's motion for a stay during a conference on Wednesday.

In a letter filed late Tuesday, DOJ attorneys asked Furman to stay pretrial and trial proceedings ahead of a forthcoming writ of mandamus or certiorari in the U.S. Supreme Court. The stay request came after the nation's highest court granted the government's request to stop the deposition of Department of Commerce Secretary Wilbur Ross from taking place until Oct. 29 at the earliest. The plaintiffs responded that they oppose moving the trial date despite uncertainty about whether they will be able to depose Ross.

The Supreme Court's order opened the door for potential review of the scope of Furman's review. The government seeks to narrow review to only the administrative record, while a coalition led by the New York Attorney General's Office alongside attorneys for immigration groups want to expand the scope to see who else may have had a hand in influencing or helping Ross and other census administrators reach their decision.

Furman said he understood that time was of the essence, given upcoming administrative timelines for getting the census process on track. Furman argued that it would be more prudent to advance to trial next month, allow all the parties to preserve their issues for appeal, and to develop a full record for the inevitable appeals that were sure to come in the future, rather than stay proceedings now ahead of an unclear Supreme Court timetable.

“I don't understand the harm of letting the case proceed on its natural course,” Furman stated. He added he found it “extraordinary” that DOJ attorneys “would go running” to the Supreme Court with issues more regularly dealt with on summary judgment ahead of trial.

Assistant U.S. Attorney Kate Bailey argued that both the stay and the pursuit of higher court review were needed to keep the time and resources of the DOJ, Commerce Department and other federal offices from being wasted responding to the “really … extraordinary” pursuit by the plaintiffs. Bailey also said the federal government didn't think the press for time was “quite so dire.”

The plaintiffs in the case, a coalition of states and immigrants' rights groups, have argued that asking about immigration status on the census will lower participation in states with large immigrant populations, like New York. That could lead to fewer allotted representatives in Congress and the Electoral College for those states. It could also mean less federal funding in areas like education and health care.

New York Attorney General Barbara Underwood is leading a coalition of 18 states in the lawsuit. A separate complaint brought by the New York Immigration Coalition was consolidated with Underwood's lawsuit for trial. The NYIC is represented by the New York Civil Liberties Union, the American Civil Liberties Union and Arnold & Porter Kaye Scholer.

The order from the Supreme Court earlier this week delayed the deposition of Ross indefinitely while the high court reviews a decision by the district court that allowed his testimony in the first place.

In the meantime, the Trump administration has agreed to make former assistant attorney general for Civil Rights John Gore available for a deposition this Friday. Gore allegedly “ghostwrote” the letter from the U.S. Department of Justice to the Commerce Department asking that the citizenship question be reinstated.

Ross had originally said the letter from the DOJ was the impetus for adding the question during testimony before Congress. He walked back that claim in a memo earlier this year, in which he said his agency had started thinking about the issue shortly after his confirmation in February 2017.

That was complicated more in recent weeks when it was revealed that former White House chief strategist Stephen Bannon had spoken to Ross about adding the citizenship question and arranged a phone call with Kansas Secretary of State Kris Kobach, who has been an outspoken supporter of the question.

While Furman opted not to rule on the U.S. government's stay motion in open court, he did agree to allow live expert witnesses from both sides to testify during the trial, should it go forward.

Related:

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