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Judge orders Census Bureau to keep counting through October

The agency planned to wrap its 2020 count next week, but a federal judge ordered workers to stick to the original Oct. 31 deadline


By Michael Macagnone Posted September 25, 2020 at 9:53am


Census Bureau employees rushing to wrap up the 2020 count have been given a reprieve. Workers may continue counting beyond Sept. 30, according to a federal judge's order that bars the Trump administration from trying to end the 2020 count a month early. The plaintiffs, led by the National Urban League, had argued that by abandoning the effort to extend in-person counting to Oct. 31, and the ultimate deadline for delivering census results to April 30, the Trump administration risks undercounting typically underrepresented communities and violating administrative law.




  Late Thursday, U.S. District Judge Lucy Koh of the Northern District of California agreed, finding that Commerce Secretary Wilbur Ross’ directive to cut the counting short — the “replan” — ignored the risk to the count’s accuracy, among other problems. The agency could not blindly adhere to the statutory Dec. 31 deadline for apportionment data while ignoring the requirements for an accurate census, she said in her decision.

“Even as the bureau began to develop the replan at the secretary’s direction, the bureau continued to acknowledge that the replan would present an unacceptable level of accuracy,” the ruling said.


The Justice Department will likely appeal the loss, as it hinted earlier this week that it would appeal a temporary extension of the restraining order. Administration officials have tried to keep control of the census amid their recent effort to exclude undocumented immigrants from apportionment — an attempt that has been appealed to the Supreme Court after being blocked in a separate federal case.


Representatives for the Justice Department and the Census Bureau could not be immediately reached for comment.


Kristen Clarke, president of the Lawyer’s Committee for Civil Rights Under Law, one of the lawyers for the plaintiffs, praised the decision in a statement Thursday.

“The court’s decision today ensures that our underrepresented and most vulnerable communities will not be disadvantaged by an unfair and incomplete census count,” Clarke said.


The Census Bureau shut down many of its counting operations in March due to the coronavirus pandemic. As a result, the agency requested that Congress pass legislation to extend the statutory deadlines for the census by 120 days so the agency could deliver apportionment data by the end of April and detailed legislative mapmaking data by the end of July.


Census results are also used to guide $1.5 trillion in federal spending each year and thousands of health, transportation and other decisions by businesses and state and local governments.


The House passed legislation to extend the deadline as part of broader pandemic relief legislation (HR 6800), but the Senate did not act on the measure.


In July, President Donald Trump signed a memorandum to exclude undocumented immigrants from the apportionment process. The White House dropped its request for a deadline extension shortly afterward.


Internal agency emails released in the lawsuit show career officials raising alarms about inaccuracies introduced by the shortened schedule. Delivering apportionment data to the White House by Dec. 31 would mean less time in the field counting people and sifting through administrative data to find errors, the emails said.


In one July email, associate director for field operations Tim Olson said “any thinking person who would believe we can deliver apportionment by 12/31 has either a mental deficiency or a political motivation.”


A week after that email, the Commerce Department directed the Census Bureau to engage in a “replan” of the census to comply with the existing Dec. 31 deadline. That resulted in a shortened schedule with in-person counting efforts ending Sept. 30, which became the subject of the lawsuit. The Justice Department maintained that Congress has the power to set the census schedule and, by its silence, effectively shortened the count. Congressional solution A handful of Senate Republicans have come around to passing a legislative extension of the deadline, but there remains little time to do so. The House has not passed a stand-alone census extension, and Senate leadership has said the chamber will recess for the election soon after finalizing government funding. Some Republicans, including Sen. Dan Sullivan of Alaska, have pushed to extend the count. He and Sen. Lisa Murkowski, R-Alaska, signed on to an extension bill sponsored by Sen. Brian Schatz, D-Hawaii, earlier this month.


“To take the time to get an accurate count is critical for every state, especially my state, which is notoriously hard to count accurately,” Sullivan said.

Sen. David Perdue, R-Ga., also signed on to the Schatz bill. In addition, Sen. Steve Daines, R-Mont., sent a letter to Senate leaders earlier this year calling to give the census more time. A few others have backed an extension to the count in theory, such as Sen. Marco Rubio, R-Fla. “Ultimately we want the census to be accurate, and the pandemic has slowed down responses. It probably wouldn't hurt to add a few months to it to try to get better numbers,” Rubio said Wednesday.

Passing legislation to extend the count would serve as a blow to an administration seeking to control apportionment regardless of the winner of November’s election. White House negotiators regarded a census extension as a “poison pill” in recent talks over the continuing resolution to keep the government open.

Administration officials have maintained that they can complete an accurate census by the end of the year.


Democrats and a number of outside watchdogs have differed, though. An Office of Inspector General report from earlier this week noted that internal agency documents highlighted a higher risk of inaccuracies with a shorter count.

A study released by the American Statistical Association showed that the shortened count would likely hurt the states most far behind in the count, including Alabama, Georgia, Mississippi and Montana. These states have significant rural areas or the Census Bureau held off on-the-ground counting operations longer there due to the coronavirus pandemic. The study pointed out that the Census Bureau may count 10 percent or more of households in those states through less likely administrative records or statistical processes. Using past censuses as a guide, the study estimated that those states could lose out on hundreds of millions of dollars from federal programs like Medicaid. 

Florida and Montana could even miss out on congressional seats, according to the study, sending those seats to California, Idaho and Ohio.

Rachel Oswald, Paul M. Krawzak and Jennifer Shutt contributed to this report.  See story at https://www.rollcall.com/2020/09/25/judge-orders-census-bureau-to-keep-counting-through-october/

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