In a new ruling, judge says census count must continue through October

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A federal judge has ordered that the 2020 Census continue until Oct. 31, blocking for now the government’s efforts to complete the survey in time to deliver apportionment data to the president by the end of the year.

The ruling late Thursday night by U.S. District Judge Lucy Koh of the Northern District of California follows a tense week in which the government appeared to try to circumvent a preliminary injunction against ending the count early.

After a surprise announcement Monday that the bureau was moving the end date by just five days, from Sept. 30 to Oct. 5, plaintiffs in the case asked Koh to provide clarification of her earlier order and other sanctions.

Rejecting the government’s argument that the request was “an attempt to radically modify the preliminary injunction,” Koh’s new ruling clarified that the end date for collection must revert to Oct. 31, as the bureau had originally planned.

It also ordered that on Friday, the government must send text messages to all Census Bureau employees notifying them of the Oct. 31 end date, and that Director Steven Dillingham must file a declaration by Monday that “unequivocally confirms Defendants’ ongoing compliance with the Injunction Order and details the steps Defendants have taken to prevent future violations of the Injunction Order.”

The suit, brought by the National Urban League and a group of counties, cities and others, said a truncated schedule would irreparably harm communities that might be undercounted.

On Friday, Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which is arguing the case, said, “Once again, the court has stopped the administration in its tracks.” Noting that some states with significant minority populations still face an undercount, she added, “Much work remains to be done to achieve an accurate census count that satisfies constitutional standards.”

The Justice and Commerce departments did not respond to requests for comment.

The government had appealed Koh’s Sep. 24 injunction to the U.S. Court of Appeals for the 9th Circuit, which denied the appeal Tuesday.

Nevertheless, Koh found that after her injunction, the government continued to tell employees to wind down operations by Sept. 30, and the Census Bureau’s website, “which is updated daily,” continued for four days after her injunction to say that data collection would end that day.

The ruling said the court had received “a slew of emails from enumerators across the country that include supervisor texts with erroneous information and that express concern about the ending of field operations without adequate counts.”

Koh’s ruling found that the government’s switch to a Monday deadline had “the same legal defects” as the revised “Replan” that it abruptly announced in early August, which shaved one month off the count.

Canceling a hearing planned for Friday afternoon, Koh set a case management conference for Tuesday.

Earlier this year, the bureau had said it was extending the count until Oct. 31 because the coronavirus pandemic had made its original schedule unfeasible. In April, it asked Congress to extend the statutory deadline for delivering the data for reapportionment – allocating congressional seats to the states – to the president, from Dec. 31 to April 30. The House approved the change but the Senate never acted on it.

Then, in a July 21 memo, President Donald Trump said he wanted to exclude undocumented immigrants from reapportionment, and on Aug. 3, the bureau announced its Replan. Both the memo and the Replan have been challenged in multiple lawsuits. After a court in New York blocked the memo last month, the government appealed to the Supreme Court.

In her ruling Thursday, Koh cited internal emails from late July in which a senior Census Bureau official said it was “ludicrous to think we can complete 100% of the nation’s data collection earlier than 10/31 and any thinking person who would believe we can deliver apportionment by 12/31 has either a mental deficiency or a political motivation.”

The administration has added an unprecedented four political appointees to the bureau since June, raising concerns that it is trying to inject partisan politics into the nonpartisan agency.

Census data is used to determine a decade’s worth of federal funding, congressional apportionment and state redistricting. Analyses have shown that an inaccurate count could harm both Republican and Democratic states.

But a data set delivered to the president, regardless of its accuracy, is necessary if the administration wants to try to exclude undocumented immigrants from the count while Trump is in office.

In a related case in U.S. District Court in Maryland, a three-judge panel issued a letter Thursday, apparently filed before Koh’s ruling, noting that the government had “argued vigorously that if the data collection period extended past Sept. 30, the Bureau could not possibly deliver the apportionment counts by the statutory deadline, December 31, 2020.”

The judges ordered the government to submit a letter by 5 p.m. Friday explaining the effects of Koh’s injunction and stating whether and how the bureau planned to meet the Dec. 31 deadline.