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

A federal judge on Tuesday said a revised Oct. 5 date the U.S. Commerce Department picked to end the 2020 census may violate an order she issued last week that cleared the way for the head count of every U.S. resident to continue through the end of October.

U.S. District Judge Lucy Koh 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, the San Jose, California, judge suspended the U.S. Census Bureau’s deadline for ending the head count on Wednesday, which automatically reverted the deadline back to an older Census Bureau plan in which the timeline for ending field operations was Oct. 31. Her 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 Census Bureau and the Department of Commerce, which oversees the statistical agency, arguing that minorities and others in hard-to-count communities would be missed if the counting ended at the end of September instead of the end of October.

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.

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

Trump administration attorneys were in courts on both coasts Tuesday, fighting over when the 2020 census would end and how the data would be used for deciding how many congressional seats each state gets.

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

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

The New York judges’ order prohibits Ross from excluding people in the country illegally when handing in 2020 census figures used to calculate apportionment. The Trump administration has appealed to the U.S. Supreme Court and asked for the judges’ order to be suspended during that process. The judges on Tuesday denied that request.

The New York judges didn’t rule on the constitutionality of the memorandum, merely saying it violated federal laws on the census and apportionment, leaving open the door for the judges in the nation’s capital to rule on other aspects of the president’s 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 federal judges, federal government attorney Sopan Joshi said the Census Bureau had no intention of using statistical sampling.

The Washington lawsuit was brought by a coalition of cities and public interest groups, who argued the president’s order was part of a strategy to enhance the political power of Republicans and non-Hispanic whites. The U.S. 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 U.S. House of Representatives, told the 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.

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

The census helps determine how many congressional seats each state gets during apportionment, as well as the distribution of $1.5 trillion in federal spending annually.

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