18 Civ. 02921

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In an opinion today, Judge Furman granted a motion for sanctions against the Department of Justice for failing to review and produce hundreds of relevant documents in the litigation over when a citizenship question could be included in the 2020 Census (see our previous coverage here).  The case centered on whether the inclusion of the citizenship question was a proper exercise of executive authority. The withheld documents provided evidence that the question was included to assist in political redistricting efforts, and that the stated justification (that the question was added to help enforce the Voting Rights Act) was pretextual.

While Judge Furman agreed that the conduct was sanctionable, he noted that the most appropriate remedy – judgment in favor of the plaintiffs – had already occurred:
Continue Reading Judge Furman Sanctions DOJ in Census Citizenship Question Case

The Supreme Court today, in an opinion by Chief Justice Roberts, largely affirmed Judge Furman’s conclusion (see here) that the Commerce Department’s decision to add a citizenship question to the 2020 census was based on a rationale —  to help enforce the Voting Rights Act — that was pretextual, and agreed that the matter must be remanded back to the agency to reconsider:
Continue Reading Supreme Court Agrees With Judge Furman that Census Citizenship Question Was Added Based on “Contrived” Rationale

In a 277-page decision today, Judge Furman vacated the Commerce Department’s decision to add a citizenship question to the 2020 census, finding that the decision was a violation of the Administrative Procedure Act.  (Our prior posts on the case are here.)

Judge Furman found that Commerce Secretary Wilbur Ross justified the new question based on a rationale – that doing so would enhance enforcement of the Voting Rights Act (VRA) – that was clearly a pretext.  Judge Furman stated he was unable to determine “what Secretary Ross’s real reasons for adding the citizenship question were,” but found the evidence overwhelming that “the VRA was a post hoc rationale for a decision that Secretary had already made”:
Continue Reading Judge Furman Strikes Citizenship Question from Census, Finds The Government’s Stated Rationale to Have Been a Pretext

On Friday, the Supreme Court, as expected, granted certiorari in the challenge pending before Judge Furman over the addition of a citizenship question to the census.  The question presented concerns whether it is appropriate to order discovery outside the administrative record (such as the deposition Judge Furman had earlier ordered of Commerce Secretary Wilbur…

In the ongoing saga of New York State’s challenge to the U.S. Census question on citizenship (see our previous coverage here), Judge Furman has rejected the Department of Commerce’s 11th hour attempt to delay the trial in the case currently scheduled to begin on November 6.   Citing “the defendants’ own urgent need for finality,” Judge Furman found that the Department of Commerce failed to show any irreparable harm should the trial proceed as planned, noting that they had already “conced[ed], as a procedural matter, that a trial is appropriate” by electing not file a summary judgment motion, at the Court’s invitation, which could have argued that the case be decided on the administrative record without a trial.

The U.S. Supreme Court’s recent order preventing the deposition of Secretary of Commerce Wilbur Ross loomed large in Judge Furman’s decision:
Continue Reading Judge Furman: Census Trial Will Proceed Next Week Despite SCOTUS Order on Ross Deposition

This week, Judge Furman ordered U.S. Secretary of Commerce Wilbur Ross Jr. to sit for a deposition in a case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire.  The question had not appeared on the census questionnaire since 1950; according to the complaint, the question was purposefully added to decrease the response rate among immigrant communities, leading to fewer public services and less Congressional representation in those areas.

Judge Furman had previously found that the plaintiffs had “made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith” and allowed discovery into the decision to add the citizenship question back to the census.  Judge Furman found that the deposition of Secretary Ross himself was required because of Secretary Ross’s high degree of personal involvement in the decision and the extent to which his credibility and intent was thus at issue
Continue Reading Judge Furman: Secretary of Commerce Must Sit for Deposition Over Census Citizenship Question