Photo by Maria Dryfhout

The trial over the Trump administration's decision to ask U.S. residence about their citizenship status on the 2020 census is beginning to take shape one week before it's set to begin, with each side asking for certain evidence to be excluded and a last-ditch effort by the plaintiffs to obtain discovery.

Both the Trump administration and the plaintiffs in the case, a coalition of states and immigrants' rights groups, asked U.S. District Judge Jesse Furman of the Southern District of New York in new filings to keep certain evidence and arguments out of the trial.

New York Attorney General Barbara Underwood is leading a coalition of 18 states in the lawsuit, which has been consolidated with another suit from the New York Immigration Coalition for trial. The NYIC is represented by the New York Civil Liberties Union, the American Civil Liberties Union, and Arnold & Porter.

The request from the U.S. Department of Justice was much more extensive than what the plaintiffs asked to be excluded. The Trump administration asked Furman to set aside hundreds of pieces of extra-record evidence the plaintiffs obtained during discovery. The request is unlikely to be granted by Furman, who was the one who allowed extra-record discovery in the first place in July.

Lawyers with the DOJ argued that any evidence beyond the administrative record was not necessary to decide the merits of the lawsuit because it was brought under the Administrative Procedure Act. That's the same argument they made before Furman's decision in July.

“Under the Federal Rules, evidence must be relevant to be admissible,” the DOJ said in its filing. “Here, there can be little doubt that the extra-record evidence Plaintiffs seek to introduce at trial to challenge the Secretary's decision is irrelevant in this APA case.”

The filing refers to Commerce Secretary Wilbur Ross, whose deposition in the lawsuit is still in limbo. Furman compelled him to be deposed in September, but the U.S. Supreme Court has since halted it while it reviews his decision that allowed extra-record discovery. If the high court finds Furman erred in that decision, Ross' deposition will be off the table, as well as the extra-record evidence the plaintiffs intend to use at trial.

Among that extra-record evidence are emails obtained by the plaintiffs that appear to show the Commerce Department was already considering the citizenship question during the early months of the Trump administration, which was contrary to past statements by Ross.

One email the Trump administration does not want brought into trial was between Ross and Earl Comstock, a top official at the Commerce Department. Ross asked Comstock for a progress report on the citizenship question in the email, which was sent in early May 2017.

“I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question. Why not?” Ross wrote.

Ross initially told Congress that the citizenship question was “initiated” in December 2017 when the DOJ sent a letter to the Commerce Department asking that it be added to help better enforce the Voting Rights Act. The Trump administration wants to block the plaintiffs from using that testimony during trial as well, filings show.

Those items are a fraction of the hundreds of pieces of evidence the DOJ objected to in its filing.

“It is apparent that Plaintiffs intend to use these exhibits to second-guess the wisdom of the Secretary's decision using information that was not considered by the Secretary in his decisionmaking process,” the filing said. “As discussed in Defendants' pretrial memorandum, Plaintiffs' intended use of exhibits for this purpose is wholly inappropriate in resolving Plaintiffs' APA challenges.”

A spokeswoman for Underwood questioned the Trump administration's requests in a statement on Monday.

“Given DOJ's extensive and absurd attempts to block discovery and the entire case, you really have to wonder what they're trying to hide,” said Amy Spitalnick, the spokeswoman for Underwood. “We won't back down from fighting for a full and fair Census.”

The plaintiffs' request to Furman was more limited. They argued in their filing that the Trump administration should not be allowed to offer alternative reasons for asking about immigration status on the census at trial because Commerce Department officials did not offer those explanations previously. The agency had consistently deferred to the DOJ's request involving the Voting Rights Act as its rationale for adding the citizenship question.

Officials have since said in depositions, according to the plaintiffs, that the Voting Rights Act is not the only reason to ask about immigration status on the census.

“During their testimony, senior Commerce officials testified about new rationales and justifications for asking the citizenship question, unrelated to the Voting Rights Act,” the filing said. “Defendants should therefore now be prohibited from offering any post hoc rationale or evidence justifying the decision for the simple reason that it would not be the stated reason for Secretary Ross's decision.”

They also want to block the Trump administration from arguing at trial that no evidence exists to support the plaintiff's claim that asking about citizenship will lower census participation rates, which is a key part of the lawsuit.

They have argued that asking about immigration status will lead to fewer people participating in the census, which could cause an undercount of people in states with large immigrant populations, such as New York. That could lead to fewer representatives in Congress and the Electoral College in those states. It could also lead to less federal funding in areas such as education and health care.

The plaintiffs said in their filing that they were consistently refused data from the Census Bureau that might have helped them quantify the impact of asking about citizenship. They argued in their filing that the Trump administration should not be allowed to argue that no evidence exists to support the plaintiff's claims when they were not given the data to evaluate them.

“While Defendants had a right to raise their objections, they cannot both deprive Plaintiffs of data that would assist their analysis by asserting Title 13 and then argue that Plaintiffs' proof regarding these topics is insufficient,” the plaintiffs wrote.

They asked Furman in a separate filing to compel the Trump administration to produce a handful of documents the DOJ has argued are privileged. They include a literal Post-It note written to former Assistant Attorney General for Civil Rights John Gore from James Uthmeier, counsel at the Commerce Department, among others. The contents of the note were unknown.

The trial is scheduled to begin Nov. 5 before Furman, who recently denied a request from the Trump administration to delay the trial while the Supreme Court reviews his decision on extra-record discovery. The Trump administration has since applied to the Supreme Court to delay the trial.

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