Trump Administration Appeals Order That Bars Census From Ending Early

Sep 25, 2020
Originally published on September 28, 2020 10:27 pm

Updated Sept. 28 at 10:27 p.m. ET

The Trump administration is appealing a federal court order that calls for it to abandon last-minute changes to the 2020 census schedule.

The preliminary injunction issued Thursday by U.S. District Judge Lucy Koh in the Northern District of California suspends Sept. 30 as the revised end date for tallying the country's residents.

The Justice Department filed a notice Friday that they are appealing that order to the 9th U.S. Circuit Court of Appeals, further complicating what could be the final days of counting for this year's census.

The move is the latest development in a federal lawsuit over the administration's decision to shorten the timeline for the national head count.

Koh found that the administration's truncated census schedule is likely to produce inaccurate numbers about historically undercounted groups, including people of color and immigrants. That, in turn, would harm the constitutional purpose of the count — to redistribute the seats in the House of Representatives among the states based on their latest populations.

The judge also found that the challengers in the lawsuit — a coalition of groups led by the National Urban League — are ultimately likely to succeed in the lawsuit by arguing that the administration's decision was arbitrary and capricious.

In response to disruptions caused by the coronavirus pandemic, the administration had previously called for more time for the once-a-decade census and asked Congress to pass four-month extensions to the legal deadlines for reporting results.

But in July, the administration changed its position with no public explanation. The Census Bureau's director, Steven Dillingham, later confirmed that Commerce Secretary Wilbur Ross, who oversees the bureau, had directed it to speed up all counting efforts to end by Sept. 30 — a month earlier than the bureau had planned — in order to deliver the first set of results to President Trump, as federal law requires, by the end of this year.

Congress has yet to pass any laws to extend the census reporting deadlines, although a bipartisan group of senators recently introduced a bill with extensions.

Justice Department attorneys have attempted to present speeding up the count as a way for the Census Bureau to meet the Dec. 31 legal deadline for reporting results in light of Congress not giving the bureau more time.

Koh noted, however, that explanation "runs counter to the facts."

"Those facts show not only that the Bureau could not meet the statutory deadline, but also that the Bureau had received pressure from the Commerce Department to cease seeking an extension of the deadline," the judge wrote in the order, which cites multiple internal emails and other documents the administration was required to release for the lawsuit.

Top career officials at the bureau warned as early as May that because of COVID-19, the bureau could no longer meet the Dec. 31 reporting deadline for the latest state population counts.

According to the bureau's own internal analysis, truncating the time for the census increases the risk of serious errors in the results, which are also used to guide the distribution of an estimated $1.5 trillion a year in federal money to local communities for Medicare, Medicaid and other public services.

Recently released internal documents show that officials tried to warn the administration in July that shortening the schedule would lead to "fatal data quality flaws that are unacceptable for a Constitutionally-mandated national activity" and risked the perception of "politically-manipulated results."

"As the Court recognized, the Census Bureau has itself repeatedly recognized that a full, fair, and accurate count takes time, especially when faced with a historic pandemic," said Melissa Arbus Sherry, a partner at the law firm Latham & Watkins who helped represent the challengers.

While the case continues playing out in court, plaintiffs are hoping the extra time for counting will improve the accuracy of the count.

"The coronavirus pandemic has set all of us back and created many challenges to get people counted, especially for rural areas such as the Navajo Nation," Navajo Nation President Jonathan Nez said in a statement. "Today's ruling should be respected to allow the census count to continue without disruption."

"For the Black community, this decision means we have extra time to claim the governmental resources and representation that we've been denied," said Nana Gyamfi, executive director of the Black Alliance for Just Immigration, another plaintiff in the lawsuit.

In Maryland, the bureau is facing a similar legal challenge over the shortened timeline. The federal court there is expected to issue a ruling soon on a separate request to extend the census schedule.

Before ending a virtual hearing on Tuesday, Koh noted that the administration had already signaled it was preparing to appeal even before the judge issued her latest ruling. When DOJ attorney Aleks Sverdlov attempted to push back in the hearing's last minutes, the judge had heard enough.

"Go ahead and appeal me," Koh said.

Clarification: 9/28/20

An earlier Web version of this story, as well as the audio version, said that a court order required the Census Bureau to continue counting efforts through Oct. 31. It would have been more accurate to say that the order suspends Sept. 30 as the end date for counting, which in turn reinstates the end date that the Trump administration had previously announced, Oct. 31.

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A federal court says the United States Census count may go on. The judge blocked a Trump administration effort to stop the counting in the census that determines your congressional representation, federal funding for the place where you live and a lot more. There is a lot of power in those numbers. And the judge gave the Census Bureau until October 31 - a month longer than the administration wanted. NPR's Hansi Lo Wang covers all things census related and is in New York. Hansi, good morning.


INSKEEP: What, at least according to the court, did the Trump administration do wrong?

WANG: Well, this was a preliminary finding by U.S. District Judge Lucy Koh in Northern California. And based on internal documents that the administration was required to release for this lawsuit, the judges found that the challengers here, led by the National Urban League, that they've shown that they're likely to win in this lawsuit in arguing that the administration - this last-minute decision it made in July and announced in August to shorten the census schedule is likely to lead to an undercount of historically undercounted groups, including people of color and immigrants, and that this decision was made in an arbitrary and capricious way, a misuse of the administration's discretion over conducting the census.

INSKEEP: That's an interesting phrase to hear because I'm recalling there are other lawsuits where the administration has been found to be arbitrary and capricious. I'm thinking of Deferred Action for Childhood Arrivals where the Supreme Court said, yeah, you can change that policy, but you need to give your reasons why and for there to be a process so that it's fair for people to be affected. Apparently the same thing happened here?

WANG: And the same thing is - happened in the lawsuit over - the lawsuits over the now blocked citizenship question that the Trump administration tried to add to the census forms and was blocked by federal courts - permanently blocked by the federal courts because, again, it's a similar issue here - the process that was not followed. There was not a proper process that was followed in making that decision. And that is what the judge here in this case for the census schedule lawsuit is finding here, that it is likely for the challengers will win based on these claims.

INSKEEP: Does it seem probable - and, of course, we don't know exactly what we can forecast will happen over the next month - but seem probable that more people of color, more historically undercounted groups will be more fully counted in these next few weeks when census counters will continue?

WANG: That is what these challengers are hoping. That's why they brought this request to the judge to order the administration to do an extra month of counting, which means that door knockers have to continue to go out and try to knock on doors of unresponsive households that the administration - Census Bureau has to keep on collecting responses online, over the phone and through the mail. So census advocates, community groups, are going to likely try to keep on pushing a message to encourage folks who have not participated yet to participate, to get counted. Because, right now, the response rates, the self-response rates, in many states are lower than a lot of community groups would want. And the Census Bureau still has a lot of work to do in a number of states.

INSKEEP: Is the administration going to appeal?

WANG: The administration is very likely going to appeal this ruling. And so we're going to - I'm going to watch for the next few days to see exactly what happens to this ruling, whether or not October 31 ends up being the last day of counting because Justice Department attorneys have already said earlier this week that they were getting ready to appeal. And it could be to - all the way to the Supreme Court because the days - the time is running out. And the administration wants to end counting by September 30.

INSKEEP: And, of course, at the moment, the Supreme Court has eight justices on the bench, although Republicans in the Senate are moving to confirm President Trump's choice, which we expect tomorrow, to fill that ninth. Hansi, thank you very much.

WANG: You're welcome, Steve.

INSKEEP: NPR's Hansi Lo Wang. Transcript provided by NPR, Copyright NPR.