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Federal Judge Bars Trump Administration From Ending Census Early Ruling Against Shortening Count Adds to Questions Raised About Census
(32 minutes later)
WASHINGTON — Twice in the last 15 months, federal courts have scrutinized rationales offered by the Trump administration for trying to upend key parts of the 2020 census, and twice judges have found them wanting.
WASHINGTON — A federal judge barred the Trump administration on Friday from ending the 2020 census a month early, the latest twist in years of political and legal warfare over perhaps the most contested population count in a century. The first was in June 2019, when the administration said it wanted to belatedly add a question about citizenship to the census to help enforce the Voting Rights Act, a reason the Supreme Court politely called “contrived.”
In U.S. District Court for the Northern District of California, Judge Lucy H. Koh issued a preliminary injunction preventing the administration from winding down the count by Sept. 30, a month before the scheduled completion date of Oct. 31. She also barred officials from delivering completed population data to the White House on Dec. 31 rather than the April 2021 delivery date that had previously been set out. The second was on Thursday, when a federal district judge in California ruled that the Commerce Department had “never articulated a satisfactory explanation” for its decision to end the census months earlier than had been planned.
The judge had temporarily stayed the early completion of the census count on Sept. 5 pending a hearing held on Tuesday. Which raises these questions: What is the administration trying to do with the census? Why has it not been clearer about its reasons? And what does its approach portend?
The ruling came after evidence filed this week showed that top Census Bureau officials believed ending the head count early would seriously endanger its accuracy. The administration’s critics say the first answer is straightforward. Mr. Trump ordered the Commerce Department in July to prepare state-by-state counts of unauthorized immigrants along with the 2020 census so they could be subtracted from any population totals sent to Congress for reapportionment. And moving up the count was widely seen as an effort to ensure that Mr. Trump — and not Joseph R. Biden Jr., should he win the presidential election — controls census figures that will be used next year to reallocate seats in the House of Representatives and draw thousands of political boundaries nationwide.
In one July email, the head of census field operations, Timothy P. Olson Jr., called it “ludicrous” to think a curtailed population count would succeed. A second internal document drafted in late July said a shortened census would have “fatal data flaws that are unacceptable for a constitutionally mandated national activity.” “I think it’s important to them for purposes of carrying out the political promise to fix immigration — in heavy scare quotes,” Justin Levitt, an expert on census and election law at Loyola Law School in Los Angeles, said. “There are two ways to declare victory in that fight. One is to do it, and the other is to change the facts so it looks like you did it.”
The administration ordered the speedup anyway. Critics immediately said it would lead to drastic undercounts, particularly for low-income areas and communities of color, which are least likely to respond to the census. Even with Thursday’s decision blocking the administration’s plan for a shortened census, Mr. Levitt and others say it is clear that the battle to achieve its goal not only will continue, but holds the potential for yet another political crisis.
The Trump administration had argued that it needed to end census-taking early to begin processing state-by-state population data or it would miss a statutory Dec. 31 deadline for sending population figures to President Trump. The word “immigrants” does not appear in the administration’s rationales for either the shortening of the count or the citizenship question, but it is an obvious subtext. Commerce Secretary Wilbur L. Ross Jr., who oversees the Census Bureau, began asking how the census could identify noncitizens almost from the day he took office in February 2017.
That was widely seen as an effort to ensure that Mr. Trump — and not Joseph R. Biden Jr., should he win the presidential election — controls census figures that will be used next year to reallocate seats in the House of Representatives and draw thousands of political boundaries nationwide. In the same vein, compressing the period for tallying the population was on its face a scheduling issue. But the Commerce Department announced the speedup last month not two weeks after President Trump took a second swing at the problem of counting noncitizens, ordering the department to compile state-by-state estimates of unauthorized immigrants to exclude them from reapportionment calculations.
Mr. Trump had formally asked Congress this spring to extend the December deadline to April 2021, citing delays in the census caused by the coronavirus pandemic. The Democratic-controlled House registered its approval, but the Republican-controlled Senate has not acted on the request, leaving the administration leeway to order the shorter count. Scholars say the administration’s effort to take advantage of its power over the census to advance its agenda is largely unprecedented in modern times, where the national count has been valued for its accuracy and nonpartisanship. Here as elsewhere, however, Mr. Trump has chosen to push where other presidents would not.
Mr. Trump ordered in July that unauthorized immigrants be removed from population totals used for reapportionment, a move that would create a whiter, less urban and presumably more Republican population base for distributing House seats. “Judges and civil servants have generally done a good job of safeguarding democratic institutions and procedures that are specifically grounded in law or, as in the case of the census, in the Constitution,” said Larry Bartels, a Vanderbilt University political science professor. “They are less well-equipped to safeguard informal norms.”
His directive has already been rejected as illegal by a federal court, a ruling the Justice Department said it will appeal. Mr. Trump, he said, “has accelerated a decades-long process of political leaders pushing against norms that were thought to be enforced by public opinion and elite propriety, and finding those safeguards pretty toothless.”
In a 78 page opinion, Judge Koh said that a mound of internal Commerce Department and Census Bureau documents showed that both agencies knew the earlier deadlines could not be met without a high risk of creating a flawed population count. They also knew that the pandemic gave them ample legal justification for missing the December deadline for delivering data to the president, she wrote. The administration’s tactics to achieve its goals — last-minute changes to the census questionnaire and schedule, with implausible rationales — would appear contrary to Mr. Trump’s reputation for bluntness. But one expert in federal policymaking, Cary Coglianese of the University of Pennsylvania Carey Law School, said a more upfront approach might have carried even greater legal risks.
Yet their only explanation for shortening the census, she said, was a two-page press release issued on Aug 3 that said the December deadline had to be met. “Saying now that the agency wants to cut short collection to leave out immigrants would just be a slapdash way of managing a census,” he said. “And hence, it would also be arbitrary and capricious” — the standard by which courts judge the legality of federal agencies’ actions.
“The Aug. 3 press release never explains why defendants are ‘required by law’ to follow a statutory deadline that would sacrifice constitutionally and statutorily required interests in accuracy,” Judge Koh wrote. The census ruling on Thursday suggested the approach did not work. Judge Lucy H. Koh of U.S. District Court for the Northern District of California issued a preliminary injunction preventing the administration from winding down the count by Sept. 30, a month before the scheduled completion date of Oct. 31. She also barred officials from delivering completed population data to the White House on Dec. 31 rather than the April 2021 delivery date that had previously been set out.
The Commerce Department, which oversees the Census Bureau, did not immediately react to the ruling. Judge Koh, who had temporarily stayed the early completion of the census count on Sept. 5, said Mr. Ross had ignored the basics of federal policymaking law in trying to cut back the time for a head count. His decision, she said, was made without public input, without studying alternatives, without a credible reason for acting and over the protest of experts at the Census Bureau, who warned it would lead to a census that could not meet constitutional standards for accuracy.
Most others with a stake in the accuracy of the count — cities and states, businesses, advocates of underrepresented minorities — said giving the bureau more time was essential to ensuring that the count be even reasonably accurate. Career officials at the Census Bureau have already struggled to carry out a national population count that has been largely computerized for the first time ever, while slammed by a coronavirus pandemic, wildfires, hurricanes and swelling distrust of the government.
“Today’s decision is a victory for data quality,” said the incoming president of the American Statistical Association, Rob Santos. “It’s vitally important to give the hard-working census employees the time to ensure as fair and accurate a census as possible.” William Galvin, the secretary of state in Massachusetts, scoffed at the Census Bureau’s contention that it has finished counting 98 percent of his state. “We know it’s not true,” he said. Ditas Katague, who oversees state census operations in California, said issues with counting college students who went home during the pandemic are but one problem. “I have lost confidence in the ways operations are starting and stopping,” she said. “I’ve lost confidence that these students are going to be counted.”
Judge Koh’s order offered some breathing room for a Census Bureau that has been struggling to manage what was supposed to be the most accurate population count ever, conducted largely over the internet and aided by an army of census takers equipped with iPhones. The bureau says it has completed counting 97 percent of the nation’s households despite the challenges. But experts worry that the completion statistics mask a decline in quality because a household can be deemed counted in many ways, with wildly varying precision. The rates do not show the share of households that have been counted by highly reliable methods like internet or in-person interviews, versus by dicier means like asking a neighbor or relying on personal information from a database.
Instead, this year’s census has been a star-crossed exercise, pushed far behind schedule by the coronavirus pandemic, stymied by clumsy software and so mired in Republican political strategizing that even former directors of the Census Bureau have called the entire count into question. Against that backdrop, the Justice Department said on Friday that it would appeal Judge Koh’s ruling on the census schedule, seeking to keep it compressed in order to meet the Dec. 31 deadline anyway. Legal experts say the department is likely to argue that the change in the census schedule was not a new policy, but more of a midcourse correction that was beyond judicial review.
Even this week, the government’s sole witness in the lawsuit, Albert E. Fontenot Jr., the associate director for decennial census programs, said in a deposition that the pandemic, western wildfires and major storms in the South posed “significant risks to complete all states by September 30.” If that argument succeeds, the stage could be set for a battle royal over the population numbers that Mr. Trump would send to the House for use in reapportionment before his term ends. The Census Bureau traditionally produces the formulas for reapportionment itself, but this time, two sets of figures — a population count and an estimate of unauthorized immigrants — would be involved under Mr. Trump’s plan.
Despite those hurdles, the Census Bureau says it has finished counting more than 96 percent of the nation’s households, theoretically placing it in reach of its stated goal of 99 percent by the end of the month. But whether that can be done — or done accurately — remains in great doubt. What is clear is that any effort to subtract immigrants from the reapportionment figures would be fought in court and, potentially, in Congress.
Nationwide, the completion rate varies widely, with four states above the 99 percent goal. Six states remain below 90 percent and are considered poor candidates to be completed by month’s end. There are some safety valves. Lagging population counts in some Republican states — and the prospect of losing federal money and political clout as a result — have spawned a movement by some Republican senators to pass a measure extending the census deadline, even if Mr. Trump loses control of reapportionment totals.
Beyond that, the reported completion rates are an unreliable barometer of the census’s accuracy because a household can be deemed counted in many ways, with wildly varying precision. The rates do not show the share of households that have been counted by highly reliable methods like internet or in-person interviews, versus by dicier means like asking a neighbor or relying on personal information from a database. The November election could also upend the administration’s plan. A Democratic Congress could undo the reapportionment gambit with new census legislation. A Democratic House under Speaker Nancy Pelosi would control the House reapportionment process — and in a worst-case scenario, could simply refuse to allow reapportionment or to send Mr. Trump’s population totals to the states for allocating political power.
On Monday, the inspector general of the Commerce Department said the compressed schedule threatened the reliability of both the head count and the data processing and error checks that follow it. That was done once before, in 1920, when a Republican Congress refused to reapportion the House after the census showed a shift of population and political clout to Democratic-led cities. Experts say such a move would undoubtedly spark even more legal warfare and ratchet up political tension.
The report quoted unnamed senior census officials as saying the early deadlines have forced shortcuts in reviews of data and other quality-assurance steps that ensure a reliable population count. Mr. Levitt, the Loyola Law School professor and a former official in the Justice Department during the Obama administration, said averting more political drama could be in the back of judges’ minds as they review the California decision.
The report also said the Census Bureau was forced to shave a month off its head count because it had been ordered by unnamed higher-ups in the Trump administration to deliver data to the White House by Dec. 31, and could devise no other way to meet that goal. But in the end, “a lot depends, as so much else does, on November,” he said. “However this fight comes out in the courts, what Congress is prepared to accept will depend a lot on who is in Congress when that time comes.”
At least one senior Census Bureau official appeared convinced this summer that even a shortened count would not free up sufficient time to deliver a credible count.
“Any thinking person who would believe we can deliver apportionment by 12/31,” Mr. Olson, the executive running daily census operations, wrote in a July 23 email, “has either a mental deficiency or a political motivation.”