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Judge says ending 2020 census on Oct. 5 may violate court order

Census worker Ken Leonard in Greenville, Texas
Census worker Ken Leonard, in a mask because of the COVID-19 pandemic, staffs a counting site in Greenville, Texas.
(LM Otero / Associated Press)

A federal judge Tuesday said a revised Oct. 5 date set by the U.S. Commerce Department for the end of the 2020 census may violate an order she issued last week clearing the way for the count to continue through the end of October.

U.S. District Judge Lucy Koh, who is based in San Jose, suggested she would be open to considering a motion of contempt against the federal government or a motion saying her order had been violated.

Last week, Koh suspended the U.S. Census Bureau’s deadline for ending the head count Wednesday, which automatically reinstated the Oct. 31 deadline for ending field operations from a previous Census Bureau plan. Koh’s order also suspended a Dec. 31 deadline for the Census Bureau to turn in numbers used for apportionment, the process of deciding how many congressional seats each state gets.

In her decision, Koh sided with civil rights groups and local governments that had sued the bureau and the Department of Commerce, which oversees the bureau, arguing that minorities and others in harder-to-count communities would be missed if the survey ended at the end of September instead of the end of October.

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The decision to end the 2020 census on Oct. 5, credited to Commerce Secretary Wilbur Ross on Monday, was built on the idea of turning in the apportionment numbers by Dec. 31, which violates her injunction, the judge said.

“I think it’s inconsistent with what I ordered last Thursday,” Koh said.

A U.S. Census Bureau document says some steps in the numbers-crunching phase of the 2020 census will need to be cut in order to meet an end-of-the-year deadline, and that could increase the risk for errors.

August Flentje, an attorney for the Trump administration, said the suggestion that the federal government should be held in contempt was “unfair.”

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Trump administration attorneys were in court on both coasts Tuesday, fighting over when the census would end and how the data would be used for apportionment.

In Washington, administration attorneys asked a panel of three judges to dismiss a challenge to a memorandum from Trump seeking to exclude people who are in the country illegally from being counted in the apportionment process.

Tuesday’s court arguments in Washington, delivered virtually, were part of the latest hearing over the legality of Trump’s July memorandum. Arguments already have been heard in federal cases in Maryland and New York, where a three-judge panel blocked the presidential order earlier this month, ruling it unlawful.

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The New York judges’ order prohibits Ross from excluding people who are in the country illegally when handing in 2020 census figures for apportionment. The Trump administration has appealed to the Supreme Court and asked for the judges’ order to be suspended during that process.

The New York judges didn’t rule on the constitutionality of Trump’s memorandum, merely saying that it violated federal laws on the census and apportionment. That leaves the door open for the judges in Washington to rule on other aspects of the memorandum. Other lawsuits challenging the memorandum have been filed in California, Maryland and Massachusetts.

One of the aspects the judges indicated they may consider is whether the Census Bureau will have to use statistical sampling to determine how many people are in the country illegally since there is no citizenship question on the 2020 census that could help answer that. The Supreme Court has ruled that statistical sampling can’t be used for the apportionment count.

Under questioning from the judges, government attorney Sopan Joshi said the Census Bureau had no intention of using statistical sampling.

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The Washington lawsuit was brought by a coalition of cities and public-interest groups, who argued that the president’s order was part of a strategy to enhance the political power of Republicans and non-Latino whites. The House of Representatives later offered its support on behalf of the plaintiffs.

The Trump administration attorneys said the lawsuit was premature since it’s impossible to know who will be affected by the exclusion order before the head count is finished and whether the Census Bureau will come up with a method for figuring out who is a citizen.

But Gregory Diskant, an attorney for one of the plaintiffs, Common Cause, said waiting to challenge the president’s memo until after the apportionment numbers are turned in would create even greater problems. Douglas Letter, the attorney for the House, told judges that, since the nation’s founding, all three branches of government have believed that the apportionment count included noncitizens, regardless of whether they were in the country legally.

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“It’s just not right for a president to come in and say, without explanation, ‘I’m changing that,’” Letter said.

Besides congressional seats, the census helps determine the distribution of $1.5 trillion in federal spending annually.


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