Appeals court says census count must continue through the end of the month

A three-judge panel on Wednesday upheld a lower court’s order saying the Trump administration must continue the 2020 census count until the end of this month. However, the ruling, by the U.S. Court of Appeals for the 9th Circuit, said the government can still attempt to deliver the data while President Donald Trump is still in office.

A lawyer for the plaintiffs, which include the National Urban League and several jurisdictions and other groups, applauded it. “For those who care about seeing a fair and accurate census, we’re pleased with this order; it’s a victory,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which is arguing the case.

The government had requested a stay after a federal judge blocked the administration’s efforts to end the count last week and process the data in time to deliver it to the president for apportionment by a statutory deadline of Dec. 31.

U.S. District Judge Lucy Koh of the Northern District of California issued a preliminary injunction last month, adding a clarification last week after the government shifted the end date by just five days, from Sept. 30 to Oct. 5.

The clarification said the government must keep counting until Oct. 31 and could not deliver the data until April 30 — dates the bureau set in a “COVID-19 Plan” after the coronavirus pandemic upended the bureau’s original schedule.

In April, the bureau asked Congress to approve the ­COVID-19 Plan’s delivery deadline. But Congress failed to act, and in early August, shortly after Trump said he would seek to exclude undocumented immigrants from apportionment, the bureau abruptly issued a replan that shortened the count by a month and hewed to the Dec. 31 reporting date after all.

Bureau officials have issued conflicting statements about the agency’s ability to deliver accurate census data by the end of the year. In early July, they said the window to do so had already passed; in early August, they said they could do so only if they ended the count Sept. 30, and late last month, they said the last possible end date that would allow them to do so was Oct. 5. Data processing and analysis, a key part of the count, typically takes five months, and had in the COVID-19 Plan been extended to six months.

Census data is used to determine a decade’s worth of federal funding, apportionment of House seats and state redistricting. Plaintiffs said a shortened timeline would result in an undercount of harder-to-count populations, including immigrants, minorities and lower-income groups, depriving them of funding and representation.

The ruling found that the bureau’s decision-making “during the few days that the Replan was being developed does not show any response, let alone a ‘satisfactory explanation,’ to the numerous statements by Bureau officials that accelerating the schedule adopted in the COVID-19 Plan would jeopardize the accuracy of the census.”

It added that a slide deck presented to Secretary Wilbur Ross of the Commerce Department, which oversees the census, warned that shortening the count by 30 days introduced “significant risk” to the data’s accuracy. “This accuracy concern went unaddressed — beyond an unsupported attestation that the count would be accurate — in the barebones press release announcing the Replan or elsewhere in the administrative record,” the ruling said.

It also said the government had failed to consider whether “the statutory deadline could have been moved; whether the deadline might be retroactively adjusted, as was done in several earlier censuses; or whether the deadline might be equitably tolled due to the force majeure of the pandemic.”

In granting the government’s request regarding the delivery deadline, the ruling noted that Dec. 31 is nearly three months away, “predictions as to whether it can still be attained are speculative and unstable,” and if the bureau meets the deadline by compromising accuracy, it will be easier to reprocess existing data than restart data collection.

In the meantime, “Perhaps the Bureau will find that with an extraordinary effort or changes in processing capacity, it is able to meet its deadline. Or the Department of Commerce may seek and receive a deadline extension from Congress. Or perhaps the Bureau will miss the deadline. ... Missing the deadline would likely not invalidate the tabulation of the total population reported to the President ... and may well be approved by Congress after-the-fact, as has happened in the past.”

Wednesday’s ruling comes as the lower court continues to consider the case, a process that will involve additional filings and could go to trial. A status conference in the case is scheduled for Oct. 16.

The case probably will be appealed to the Supreme Court, and the government could appeal to the higher court on the part of its request that was denied Wednesday. Asked whether they planned to appeal the ruling over the delivery deadline, plaintiffs’ lawyers said they had not decided next steps.

The Justice and Commerce departments did not respond immediately to a question about whether they would appeal.

Ross and attorneys for the government have said the count is nearly complete, with 99.7% of households counted. But as of Wednesday, four states had not yet reached a 99% completion rate, which the bureau has said is necessary to end the count. And census experts and plaintiffs have said they are concerned some households were counted inaccurately to reach the completion rate goals, citing enumerators and supervisors across the country who said they were told to cut corners and skip steps in the rush to bring all states to a 99% completion rate.

Congress could still approve a change to the statutory deadline. A House coronavirus relief bill approved the change, and a bipartisan group of senators has come out in support of it. Terri Ann Lowenthal, a former staff director of the House census oversight subcommittee, said Wednesday’s mixed ruling “amplifies the need for Congress to push back the statutory reporting deadlines quickly. ... Any effort by the administration to stop that necessary action would put an accurate census in every state and community out of reach.”