After 'Egregious' Violation, Judge Orders Census To Count Through Oct. 31 For Now

Oct 2, 2020
Originally published on October 3, 2020 9:03 am

Updated Saturday at 10:20 a.m. ET

A federal judge has issued an order to clarify that, for now, the U.S. Census Bureau must continue counting for the 2020 census through Oct. 31 after finding the bureau made multiple violations of an earlier order that extends the national head count's schedule.

The latest ruling by U.S. District Judge Lucy Koh — who issued the order late Thursday in California — comes after days of confusion sparked by a one-sentence tweet from the Census Bureau that Koh called "[perhaps] the most egregious violation" of the preliminary injunction order she issued last week.

The bureau released the tweet minutes before the judge began a virtual conference Monday for a lawsuit over the Trump administration's push to cut the census short. It said that Commerce Secretary Wilbur Ross, who oversees the bureau, had announced Oct. 5 as a "target date" for ending all counting efforts.

Internal emails and other documents show that Ross chose that date to deliver the first set of census results, the latest state population counts, to President Trump by Dec. 31 — even though the judge issued an order last week that prohibits the administration from implementing Dec. 31 as a deadline.

Earlier this week, the 9th U.S. Circuit Court of Appeals rejected the Trump administration's request to set aside Koh's preliminary injunction while it is on appeal. A hearing has been scheduled for this Monday, and the administration has signaled it's prepared to go to the Supreme Court if the appeals court does not rule in its favor.

In her new order, Koh spelled out that last week's ruling suspended Sept. 30 as the bureau's revised end date for counting until Trump officials "cure all the legal defects" specified in the previous order. That, in turn, required the agency to reinstate Oct. 31 as the end date it had previously announced in response to delays caused by the coronavirus pandemic.

Koh laid out more examples of the Trump administration's "chaotic, dilatory, and incomplete compliance," including failing to update the Census Bureau's website after she issued her order last week and sending a text message to the bureau's workers on Monday that said that door-knocking efforts "will finish on October 5."

"Defendants' dissemination of erroneous information; lurching from one hasty, unexplained plan to the next; and unlawful sacrifices of completeness and accuracy of the 2020 Census are upending the status quo, violating the Injunction Order, and undermining the credibility of the Census Bureau and the 2020 Census," Koh wrote in the new order. "This must stop."

The judge ordered the bureau, which employs hundreds of thousands of workers for the national count, to send a text message to all of its employees on Friday that says the Oct. 5 date is "not operative" and that the agency will continue its data collection operations through the end of the month. The bureau's director, Steven Dillingham, is also required to submit a sworn statement to the court by this Monday that "unequivocally confirms" the administration is complying with the court's order.

"The Court will subject Defendants to sanctions or contempt proceedings if Defendants violate the Injunction Order again," Koh warned.

The Commerce and Justice departments did not immediately respond to NPR's requests for comment.

But more than 12 hours after Koh issued the new order, the Census Bureau began texting its workers and issued a statement saying it would update its website "to ensure compliance" with the judge's orders.

Attorneys for the coalition of challengers in the lawsuit, led by the National Urban League, had requested that a text message be sent to notify census workers of the court's directives.

"We appreciate the Court's swift action — we just want the government to follow the Court's orders," said Melissa Arbus Sherry, a partner at the law firm Latham & Watkins who has argued in court for the plaintiffs, in a statement.

Kristen Clarke — president and executive director of the Lawyers' Committee for Civil Rights Under Law, which is also helping to represent the lawsuit's plaintiffs — said that the judge's latest order will "support efforts to achieve a full and fair count of the population, particularly in states that continue to face an undercount and are home to significant numbers of Blacks, Latinos and other communities of color."

In Congress, Democrats on the House Oversight and Reform Committee have asked the bureau to provide documents and a briefing by career officials on how the announcement of the Oct. 5 date has affected census operations.

"Today's order reaffirms what bipartisan members of Congress have been stating: rushing the 2020 Census will result in an inaccurate and incomplete count," Rep. Carolyn Maloney, a Democrat from New York who chairs the committee, said in a statement. "The Trump Administration should follow this court order and stop politicizing the 2020 Census."

The administration is also trying to fend off a separate, Maryland-based lawsuit over its last-minute changes to the census schedule. Justice Department attorneys have told a three-judge panel hearing that case that the bureau needed to end counting on Sept. 30 to have enough time to process the results and meet the legal deadline of Dec. 31 for delivering results to the president — despite top career officials at the bureau publicly saying as early as May that the pandemic has made meeting that deadline no longer possible.

Koh called the administration's announcement that counting would wrap on Oct. 5 a "blatant contradiction" of its earlier position, and the judges in Maryland have asked Justice Department attorneys to explain how the bureau would produce an accurate count at this point.

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Exactly when counting stops for the 2020 census has been a moving date. The pandemic caused some complications. The Trump administration tried to end the count early, but federal courts stepped in. NPR national correspondent Hansi Lo Wang covers the count and joins us. Hansi, thanks so much for being with us.

HANSI LO WANG, BYLINE: Thank you for having me, Scott.

SIMON: Spare us the details, my friend. But the end date for counting has shifted many times over the last few months, hasn't it? Where are we now?

WANG: So many times. Where we are for now is October 31. Federal judge in California, U.S. District Judge Lucy Koh - she's hearing this lawsuit over the census schedule. She put out an order this week clarifying that date, October 31, because she said the Trump administration made an egregious violation of her earlier order by tweeting out an earlier end date this week. And the judge has called the administration's - called out the administration's chaotic and incomplete compliance, including texting census workers with an early end date. But the judge ordered the bureau to send out a new text message yesterday to workers. So October 31 is when your household can still get counted, for now.

SIMON: And happy Halloween.

WANG: (Laughter).

SIMON: What do these next four weeks mean for the count?

WANG: Well, this is a little tricky because those four weeks could shrink. The Trump administration has already appealed this judge's order to the 9th Circuit Court of Appeals, and it says it may go all the way to the Supreme Court.

But while this order stays in place, this means that there's more time for door knocking, more time for census workers to try to reach households in tribal areas, rural areas, other historically undercounted groups who may have a lot of distrust of the government, less likely to fill out a census form themselves. So there's more time, and that means there's a better chance of a more accurate count. And that ultimately means a fair distribution of power and money that's tied to the census. We're talking about each state's share of congressional seats, votes in the Electoral College and trillions in federal money for health care, schools, roads for the next 10 years.

SIMON: You mentioned the Trump administration has appealed. Why does the administration want a shorter timeline, do you think?

WANG: The administration says it doesn't want to miss a legal deadline. December 31 is when federal law says the new state population counts from the census are due to the president. Then these are the numbers used for reallocating seats in the House of Representatives. There's 435 seats.

But career officials at the Census Bureau have said for months, as early as May, that because of delays caused by the pandemic, the Census Bureau can no longer meet that December 31 deadline. And so what's interesting is that December 31 is still important to President Trump because of a memo he issued in July that calls for unauthorized immigrants to be excluded from those state population counts used for redistributing seats in Congress, even though the Constitution says those counts must include the whole number of persons in each state.

A court in New York has already said the president can't change those numbers like that. The administration's trying to get the Supreme Court to overturn that ruling. But the bottom line is one way to ensure that President Trump can try to make this change to the numbers, even if he does not win reelection, is if they're delivered to him by December 31.

SIMON: And what happens if they wrap up the count and do that?

WANG: Well, the judge in California, Lucy Koh, has said she's ready to issue sanctions, possibly find the administration contempt of court. I'm watching to see what happens with this appeal of her ruling. There's a hearing set for Monday at the 9th Circuit. And if the appeals court doesn't rule in the Trump administration's favor, we could see this become a legal fight at the Supreme Court.

SIMON: NPR's Hansi Lo Wang covers the 2020 census. Thanks so much for being with us.

WANG: You're welcome, Scott.

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