Appeals judges uphold lower court’s order to continue census count

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WASHINGTON – A federal court of appeals Wednesday, Sept. 30, 2020, denied the Trump administration’s request for a temporary stay on a lower court’s ruling that the 2020 Census count should be extended.

A three-judge panel on the U.S. Ninth Circuit found, 2 to 1, that blocking the ruling would allow the Census Bureau to continue winding down operations as it had started to do before a temporary restraining order and a preliminary injunction this month.

“The process of disbanding thousands of census workers will resume if an administrative stay is put in place, eliminating the Bureau’s ability to conduct field work,” said the ruling by Judges Johnnie Rawlinson and Morgan Christen. “Accordingly . . . staying the preliminary injunction would upend the status quo, not preserve it.”

The ruling comes a day after U.S. District Judge Lucy Koh said she might hold the government in contempt after it suddenly announced Monday that the count would end Oct. 5, which Koh said was a violation of her preliminary injunction. The injunction blocked the administration from stopping field operations Sept. 30.

In a filing Wednesday, lawyers for the plaintiffs, which include the National Urban League and several cities and counties, said they are not seeking a contempt charge at this time.

Noting that “Defendants could not possibly have thought that moving the end date for field operations by five days would be consistent with this Court’s order,” they asked Koh to compel the administration to submit a weekly report showing the court order is being complied with and ask for a declaration from Census Bureau Director Steven Dillingham “unequivocally confirming ongoing compliance.”

They also asked her to require the bureau look into households that were listed as complete “based on reduced operations or metrics” resulting from the attempt to end the count by Sept. 30 or Oct. 5. A hearing before Koh is scheduled for Friday.

The end date of the census was thrown into disarray in early August, when the government abruptly announced it would stop the count Sept. 30 rather than Oct. 31 as it had been planning to since spring, when the coronavirus pandemic upended the bureau’s original schedule.

The new “Replan” aimed to deliver census data for House apportionment – allocating congressional seats to states – to the president by the original deadline of Dec. 31, while President Donald Trump is still in office, rather than four months later as the bureau had planned as a result of the pandemic.

The announcement of the Replan sparked several lawsuits, joining litigation already underway challenging Trump’s July announcement that he would seek to exclude undocumented immigrants from apportionment when census numbers are delivered. A three-judge panel in New York ruled against the government this month in one of the apportionment challenges, and the government has appealed to the Supreme Court.

The appeals court Wednesday found that “the evidence in the administrative record uniformly showed that no matter when field operations end – whether September 30 under the Replan or October 31 under the COVID-19 Plan – the Bureau will be unable to deliver an accurate census by December 31, 2020. The President, senior Bureau officials, senior Department of Commerce officials, the Office of Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office have all stated that delivering a census by December 31 without compromising accuracy is practically impossible, and has been for some time.”

The ruling also noted that the announcement Monday about the new Oct. 5 end date “contradicts the government’s argument that the September 30 date is vitally important to the Bureau’s ability to meet its statutory reporting deadline.”

Referring to the dissenting judge’s citation of a Sept. 28 estimate suggesting that the census is 98% complete, the ruling noted that number was “still below the enumeration rate required by the Bureau’s internal standards for generating an accurate census report.” It noted that as of the day of Koh’s ruling, only four states had reached the bureau’s goal of 99%.