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Justices to weigh in on evidence in census citizenship-question dispute

The Supreme Court announced this afternoon that it would hear oral argument in February in a dispute over evidence in the challenge to the government’s decision to add a question about citizenship to the 2020 census. The order is the latest chapter at the court for the case; the justices had previously rejected the government’s request to put the trial in the case on hold, allowing the trial to go forward (now nearly to completion) earlier this month.

The events giving rise to the dispute now before the Supreme Court arose in March of this year, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship, intended to help the Department of Justice enforce federal voting-rights laws. A group of states (led by New York), cities and counties challenged that decision; they argued that including such a question would skew the results of the census, because it would deter households with undocumented immigrants from responding.

As part of their case, the challengers wanted to gather evidence from outside the official records considered by Ross in making his decision – including by questioning both Ross and John Gore, the acting head of the Department of Justice’s civil rights division, about why the question was added. In October, the government asked the Supreme Court to intervene in the evidentiary dispute, arguing that there was no need to probe into the two officials’ mental states when the government had provided thousands of pages of documents explaining Ross’ decision.

The Supreme Court gave the government a partial victory on October 22, blocking the challengers from questioning Ross but allowing Gore’s deposition and other fact-finding to go forward. One week later, the justices refused to put the trial in the case, which was scheduled to begin on November 5, on hold while they ruled on the government’s petition for mandamus. That petition asked the justices to issue an order directing the trial court to exclude fact-finding beyond the official records, including Gore’s deposition, and make its decision based only on the official records.

The government’s petition suggested that, in the alternative, the justices could grant review of the appeals court’s decision denying relief, and that is what the Supreme Court did today. The justices ordered an expedited briefing schedule that will allow the case to be argued on February 19, 2019.

The justices also agreed to review Cochise Consultancy v. United States ex rel. Hunt, a case involving the statute of limitations for the False Claims Act. Congress passed the False Claims Act to combat fraud in government contracting; under the act, lawsuits can be filed either by the government or by a private party, known as a relator, who acts on behalf of the government and can collect up to 30 percent of the money recovered through the lawsuit. As a general rule, an FCA case must be filed within six years of the alleged fraud, but the law contains an exception for cases in which the fraud is not discovered right away: In those cases, the lawsuit must be filed within three years of the date when “facts material to the right of action are known or reasonably should have been known by” the responsible government official – but in any event no more than 10 years after the fraud. The question that the justices agreed to decide today is whether a relator can rely on the exception to file a lawsuit after the six-year statute of limitations has run in cases in which the government is not involved.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices to weigh in on evidence in census citizenship-question dispute, SCOTUSblog (Nov. 16, 2018, 3:08 PM),