Census Litigation Update

I’ve posted the government’s latest filing in the ongoing Census litigation in the U.S. District Court for the District of Maryland. (There is similar litigation ongoing in two other district courts.)

In essence, the government is claiming that the Supreme Court’s action upholding the current injunction is based solely on the claim that the rationale behind the initial actions of the Secretary of Commerce was pretextual. As such, the case is essentially moot because the government will no longer rely upon that rationale. Thus, no further discovery should be allowed at this point. Then, as explained by the government:

Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time.

Government Motion at 1-2.


Here, no amount of discovery will change the fact that the March 2018 decision that was the subject of Plaintiffs’ lawsuit has been vacated and the matter remanded to the agency. The Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief. But proceeding to discovery now in connection with a new decision that has not yet been made would be premature. It would also be extremely inefficient.

I will update as necessary.

UPDATE: Here’s the Court’s letter order denying the government’s attempt to short-circuit the litigation. The Court made short work of the merits of the government’s position:

Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive. The discovery contemplated by the Court related to the recently discovered evidence in this case goes directly to that issue. Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant. Given that time is of the essence, therefore, the prudent course is to proceed with discovery. As both sides acknowledge, the schedule may be adjusted as circumstances warrant.

As to the procedural issue that the case is now moot, the Court said:

Additionally, Defendants suggest in their filing that Plaintiffs’ Rule 60(b) Motion is now moot. If Defendants wish to further litigate that issue, while conducting discovery, an appropriate motion can be filed and the Court will formally respond upon full briefing. In the meantime, in accordance with the Order being issued today, discovery shall commence.

Simply put, the Court saw through the government’s attempt to issue a new order, either by the Secretary of Commerce or via an Executive Order issued by Trump, and thus avoid investigation into the intent behind the inclusion of the citizenship question.