Supreme Court Allows Trump Administration To End Census Counting On Oct. 15

Oct 13, 2020
Originally published on October 14, 2020 12:43 pm

Updated at 10:40 p.m. ET

The Trump administration can end counting for the 2020 census early after the Supreme Court approved a request to suspend a lower court order that extended the count's schedule.

The high court's order on Tuesday, following an emergency request the Justice Department made last week, helps clear the way for President Trump to try to alter the count while in office by excluding unauthorized immigrants from the numbers used to reallocate congressional seats and Electoral College votes for the next 10 years.

Justice Sonia Sotomayor was the lone dissenter from the unsigned court order.

Hours after the ruling was released, the U.S. Census Bureau announced it will keep accepting responses online at through Oct. 15 until 11:59 p.m. Hawaii time. The bureau has also set Oct. 15 as the postmark deadline for paper forms as well as the end date for collecting phone responses and door knocking at unresponsive households.

In a statement, Kristen Clarke of the Lawyers' Committee for Civil Rights Under Law, one of the attorneys who helped bring the lawsuit to extend the census schedule, noted that the order "will result in irreversible damage" despite the challengers' efforts to "secure more time on the clock to achieve a fair and accurate count."

Stephen Roe Lewis, governor of the Gila River Indian Community — one of the lawsuit's plaintiffs — called the ruling "a bitter pill for us to swallow here on the Reservation" in Arizona.

"With no explanation or rationale, a majority simply decided that our people do not deserve to be counted, thus continuing a long history of leaving Indian peoples at the margins of the U.S. society at large and economy," Lewis said in a statement.

Sadik Huseny, a plaintiffs' attorney with the law firm Latham & Watkins, said in a statement that the challengers "remain focused on ensuring that the Bureau's data collections, and whatever data processing timelines the Bureau may implement, are consistent with the Constitution and the [Administrative Procedure Act]'s standards for reasoned decision making."

The court's ruling is the latest turn in a roller coaster of a legal fight over the timeline for the count. Last-minute changes by the Census Bureau and its skirting of an earlier court order for the count have left local communities and the bureau's workers across the U.S. unsure of how much longer they can take part in a national head count already upended by the coronavirus pandemic.

Lower courts previously ordered the administration to keep counting through Oct. 31, reverting to an extended schedule that Trump officials had first proposed in April in response to delays caused by the pandemic and then abruptly decided to abandon in July.

More time, judges have ruled, would give the bureau a better chance of getting an accurate and complete count of the country's residents, which is used to determine how political representation and federal funding are distributed among the states over the next decade.

Justice Department attorneys say the Census Bureau is under pressure to meet a legal deadline of Dec. 31 for reporting to the president the first set of census results — the latest state population counts that determine each state's share of the 435 seats in the House of Representatives. The numbers, in turn, also determine how many Electoral College votes each state has to determine who becomes the U.S. president in 2024 and 2028.

Since May, however, career officials at the bureau have warned that the agency can no longer meet the Dec. 31 reporting deadline because of the pandemic. Judges in lower courts have also noted that the national counts from the years 1810 through 1840 were delivered late and Congress later stepped in to approve deadline extensions.

In her dissenting opinion, Sotomayor wrote that "meeting the deadline at the expense of the accuracy of the census is not a cost worth paying, especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress."

Still, if the commerce secretary, who oversees the bureau, were to present the new state counts to the White House by Dec. 31, that would ensure that even if Trump did not win reelection, he could attempt to carry out the unprecedented change he wants to make to who is counted when determining the reallocation of House seats.

Despite the Constitution's requirement to include the "whole number of persons in each state" and the president's limited authority over the census, Trump wants to try to exclude unauthorized immigrants from those numbers.

That effort has sparked another legal fight that is also before the Supreme Court. On Friday, the court is set to discuss whether to hear oral arguments for that case in December.

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We have some breaking news now about the 2020 U.S. census from the Supreme Court. This afternoon, the high court granted the Trump administration's request to end counting as soon as possible. This comes after an emergency request from the administration. NPR's Hansi Lo Wang covers the census for us and joins us now.

Hi, Hansi.


SHAPIRO: What does this Supreme Court ruling mean for the 2020 head count?

WANG: You know, this order on this emergency request by the Trump administration really clears the way for the Trump administration to end counting efforts immediately. That includes door-knocking efforts at households that have not yet responded to the 2020 census. And this is an order that - it's not clear exactly what the thinking of the court is, other than we know that Justice Sonia Sotomayor dissented from this decision. And she wrote that - she said that the government failed - the Trump administration failed to show why it couldn't show - bring more resources to try to meet this deadline the Trump administration said it's trying to reach. That's why it's wanting to end this count early.

SHAPIRO: There are still many people in the U.S. who have not been counted. If a household wants to get counted in the census, what can they do right now?

WANG: You know, the fastest way you can check to see if you can still get counted is to go to That's the online form for the 2020 census. And if that form is still live, presumably the Census Bureau is still collecting responses as of this moment. There are also toll-free numbers if you don't have online access or you know someone who does not have online access. And for now, it's not clear if door-knocking will continue.

SHAPIRO: You have covered so many attempts by the Trump administration to limit the reach and scope and duration of the census. Remind us why they've tried so many times to end this early.

WANG: Well, the Trump administration has really changed its positions a number of times. Back in April at the beginning of this pandemic - really being called a pandemic - the Trump administration said it needed more time to conduct the census and then in July made an about-face. And that about-face where it said they need to end the census early to meet this December 31 deadline for reporting the first set of results to the president - that decision, this about-face by the administration, came right around the same time President Trump issued an - presidential memo calling for the exclusion of unauthorized immigrants from specifically the census numbers used to reapportion seats in Congress that determine how many seats in Congress each state gets and also, by the way, determines how many Electoral College votes each state gets for the next decade.

Now, the Constitution calls for a count of the whole number of persons in each state, and that is another ongoing legal fight. And the administration's been trying to get counting to end earlier than had planned. So it was to continue through October 31. Lower courts had ordered that as well, but the administration said they need to end counting as soon as possible, said need to end last week in order for it to try to meet this December 31 deadline to get numbers to President Trump. That would allow him to try to exclude unauthorized immigrants from the count, whether or not he wins reelection or not.

SHAPIRO: OK. So in addition to this breaking news from the Supreme Court about the census count ending early, you say there is this ongoing legal fight over the memo. What is the status of that fight?

WANG: That is currently also before the Supreme Court. Supreme Court justices are expected to discuss whether or not to hear oral arguments in that case as early as December. That would allow, possibly, for the court to issue a ruling before year's end - this December 31 deadline - which will allow President Trump, regardless of whether he wins reelection, to try to exclude unauthorized immigrants from the census numbers.

SHAPIRO: That's NPR's Hansi Lo Wang, who covers the 2020 census for us.

Thanks, Hansi.

WANG: You're welcome, Ari.

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