Thread by @KlasfeldReports

Closing arguments in the #2020census case are about to begin.

Watch my feed for updates on the hearing and my coverage on @CourthouseNews.

https://twitter.com/KlasfeldReports/status/1067143404558127114

Judge Furman has entered the courtroom. The attorneys introduce themselves.

“Some of you tried hard not to be there, but welcome back nonetheless,” Furman says, in a veiled swipe to the government’s bids to stop the trial.

Matthew Coangelo starts arguments for @NewYorkStateAG by contrasting an “ordinary case” and this one.

* Secretary’s decision “whitewashes” the reason for the change.
* Decision contradicted by subject matter experts

Coangelo notes a witness “choked up” on the witness stand recounting political interference with his work.

Coangelo tells the judge there is "extensive, pervasive evidence of pretext" by the Commerce Department and Wilbur Ross.

"They in fact misled the public and Congress and the court," he adds.

* Colangelo

Without an injunction, Colangelo says the census change will "impair core elements of our constitutional democracy."

"The outcome of this trial will affect every community in the county," he adds. "It affects representation in the Congress."

This could lead to communities being "marginalized and excluded for a decade."

Colangelo finishes.

Brett Shumate is up for the DOJ next.

"It was entirely reasonable for Secretary Ross to make a policy judgment that the benefits of adding a citizenship question outweighs the costs," Shumate says.

He turns to standing issues.

"There's historically been an undercount of Hispanics, even before the addition of a citizenship question to the census," Shumate says, calling it "speculative" to conclude that the revised census will chill participation.

"Even if you assume there will be a drop in the self-response because of the citizenship question, Dr. Abowd has testified that non-response follow-up operations will cure" that problem, Shumate says.

John Abowd is the Census Bureau's chief scientist.

That quote is misleading. Abowd testified that non-response follow-up operations *could* potentially cure fewer people self-reporting.

Abowd is also the witness whom Colangelo noted choked up describing being kept out of the loop about the reason for the change. He testified that the citizenship question would decrease self-response rate.

My write-up of his testimony earlier this month: courthousenews.com/top-census-sci…

Shumate asserts that the plaintiffs failed to show Wilbur Ross's bad faith.

"To be sure, he thought that adding the question could be warranted," Shumate said.

He claims a "policy preference" does not indicate "prejudgment."

"It shows he had an open mind," he said.

Shumate denies that Ross lied to Congress.

"It made perfect sense that the Commerce Department would reach out to DOJ," Shumate said.

"He didn't whitewash the record. He built one."

“If Secretary Ross had prejudged the issue, why would he engage in all of this process?” Shumate asks.

His closing argument ends, and he steps down.

Judge Furman starts questioning the parties.

DOJ has argued that the case isn't ripe until the plaintiffs try working it out administratively at the Office of Management Budget.

Furman asks Colangelo to respond to that arg.

Colangelo notes OMB has never rejected a census change + clock is ticking before surveys print.

For the ACLU, Arnold & Porter attorney John Freedman tackles one DOJ argument: that non-response follow-up (NRFU) will mitigate problems of lower self-response rates.

One method described at trial is "imputation," but Freedman noted that Abowd conceded that tactic has problems.

Judge Furman quizzes Freedman about vaulting the hurdle posed by the Clapper v. Amnesty precedent, which found injuries by human rights organizations from warrantless surveillance to "speculative" for a right to sue.

Background on that case.

courthousenews.com/U.S.-Warrantle…

Freedman notes that the civil rights groups suing here are already spending money and have sustained harm.

Furman pressing on issues likely to divide SCOTUS.

(Clapper case was a 5-4 decision, with Alito writing majority opinion.)

"We have a history in this country of misusing census data," Freedman says, referring to Japanese internment during World War II.

Shumate is now up for grilling by Furman, who asks him why he waited so long to raise a ripeness argument.

"You seem to have tried every thing you could to avoid a decision on the merits in this case," Furman tells Shumate.

But the ripeness argument is new.

"How does that make any sense given the time sensitivities here?" Furman said.

Shumate said that he understands the concern about time sensitivity.

Furman grills Shumate on the Clapper standard too. He notes that the Census Bureau works with "partner organizations."

"The defendants themselves seem to be relying on the fact that plaintiffs and organizations like the plaintiffs," Furman noted.

The judge asks Shumate how that changes the calculus that there will be a "certainly impending" or "substantial" risk of harm.

Furman calls it "a little ironic" for the Census Bureau for not conducting randomized control tests and point to the absence of randomized control testing as a failure to demonstrate causation/harm.

Furman pointed out the discrepancy between Abowd's testimony about non-response follow-up operations (NRFU) - that it could fully mitigate problems - and Shumate's characterization of it - that it "will."

"I'm pretty sure he didn't say that," Furman said.

"I don't think it accurately characterizes his testimony," Furman said, adding that he will refer back to the transcript.

Furman notes witnesses testified that NRFU *never* fully makes up for all self-response shortfalls.

"It seems undisputed that this will harm the accuracy of the data," Furman said, referring to Abowd's testimony.

Shumate argues that any injuries resulting from the addition of the citizenship question results from people illegally not filling out the census.

Furman asks Shumate about evidence of Wilbur Ross's bad faith or pretext.

He wants to clarify whether DOJ's position is (a) the judge can't consider extra-record evidence of bad faith and pretext or (b) that there's insufficient evidence of it.

Shumate says it's the latter.

Furman notes that his preliminary finding that Wilbur Ross showed bad faith is up for Supreme Court review.

Shumate down; Colangelo back up.

Morning recess. Grab a coffee and see you back in a few.

We're back and properly caffeinated.

Colangelo is addressing the merits of the plaintiffs' Administrative Procedure Act claim.

The plaintiffs argue that Census Bureau didn't follow the OMB statistical policy directives.

Shumate argued that those aren't binding upon Wilbur Ross.

Colangelo said that they are binding on all agencies.

(It's getting in the weeds here.)

Colangelo notes that Wilbur Ross said that the citizenship question had been “well tested.”

In fact: "The Abowd memo specifically points to evidences that the ACS citizenship question led to inaccurate results more than 30 percent of the time," Colangelo said.

The heart of the plaintiffs' APA claim is that Ross made the change in an "arbitrary and capricious" way.

Colangelo said that lack of testing goes against the advice of his own advisory committees.

Colangelo notes that the Census Bureau conducts a years-long process of testing the entire questionnaire.

"So there is a process for testing the entire questionnaire, which was not done with regard to the citizenship question," he adds.

Ross had "no empirical evidence" to contradict that of Dr. Abowd, the Census Bureau's own chief scientist who recommended against it, Colangelo said.

"Nobody disagrees that NRFU is worse," he said, abbreviating non-response follow-up operations.

One witness said: "Self-response is king."

"There's an even more obvious flaw in this part of the Secretary's decision," Colangelo says.

Ross "anchored" that decision that the Census Bureau would use the two years remaining to enhance protocols and models, he says.

Colangelo ridicules this as the "magic wand theory."

For the DOJ, Shumate is back up and argues: "The Secretary is not bound by the guidelines and policies of the Census Bureau."

Furman prods Shumate on showing Ross going against the bureau's recommendations.

Referring to the 30 percent more inaccurate response rate to citizenship question on the ACS, Furman asks: ""How can Secretary Ross say that is adequate performance?"

"He doesn’t; in fact, that helps our case," Shumate insists, saying that it shows Ross was "aware" of it.

"He doesn't have to choose the best option," Shumate says, but he just needs to choose a "reasoned explanation" for the option he chose.

"On what dimensions, on what grounds, did he make that determination?" Furman presses.

Shumate said that Ross took all the information into "account."

Furman asks that if he finds that Ross's decision can't be justified on grounds of "cost, burden, accuracy, completeness," wouldn't that support a violation of the Administrative Procedure Act.

"Is that not the definition of arbitrary and capricious?" he asks.

Shumate argued that the judge should not second-guess Ross's decision but only determine whether he took information into account.

Back to Colangelo.

Furman posits a hypothetical Secretary in a Democratic administration seeking to change census to benefit blue states.

In this hypothetical, the Democratic Secretary seeks a justification that would pass muster, but the post-hoc justification actually confers some benefits.

Colangelo says this isn't that.

"It has all the hallmarks of predetermination," he says, referring to this case.

Colangelo says that Ross had an "inalterably closed mind" that was "unwilling or unable to rationally consider arguments.

Furman asks whether plaintiffs dispute whether DOJ could use citizenship data for Voting Rights Act litigation, whether or not it was a pretext.

Colangelo replies that there's no evidence that they needed better CVAP (citizenship) data.

Swiping at Wilbur Ross's claim to be taking a "hard look" at census alternatives, Colangelo says: "The record reflects literally no look at all."

Furman turns to the due process claim, which will be fielded by ACLU's Freedman. He asks whether there's any evidence that connects Trump or any other member of the administration to the census change.

Trump statements did enter the record at trial.

Freedman noted that Kansas Secretary of State Kris Kobach's statements are entered into the record.

Furman asks how those statements would prove animus against immigrant communities of color.

Furman asks whether discrimination against "immigrants generally - non-Americans - would give rise to an equal protection violation"?

Freedman replies that there could be "invidious discrimination" in violation of the 5th Amendment against immigrants.

The Constitution's enumeration clause mandates a count of all residents, not citizens, he notes.

Freedman cites evidence in the record reflecting the goal not to count immigrants, including a shared Wall Street Journal article, Kobach communications and other notes.

Shumate is now up.

"There is no evidence that Secretary Ross acted for any discriminatory purpose," he said, claiming he acted at the DOJ's request. (Washington Post fact-checkers described this claim as false.) washingtonpost.com/news/fact-chec…

“Sec Ross does not live under a rock or in a vacuum,” Furman says.

Why should Furman not infer, he asks, that Ross wanted to implement the goals of the president?

The judge is pressing Shumate on whether Ross’s deposition needed to probe such issues.

Shumate said that the fact that Ross deposition blocked means plaintiffs’ can’t carry their burden on due process claim.

Furman wraps up his questioning, and he says he’s open to inviting more briefing at risk of “defendants running to the Supreme Court” and citing that invitation as “evidence of irreparable harm.” 🔥 🔥 🔥

Furman finds that dismissing the case on ripeness grounds would be “gravely unjust,” but he invites briefing on that and other grounds.

Furman reserves decision, which he hopes to file within the next few weeks.

Proceedings have ended. Press conference outside the court and story ahead.

This is the day that the Trump DOJ tried to avoid.

My write-up of closing arguments in the #2020Census case, on @CourthouseNews courthousenews.com/trump-doj-test…