Fourth Circuit Reinstates Suit Over Census Preparations

RICHMOND, Va. (CN) – Siding with the NAACP, the Fourth Circuit on Thursday revived claims that the Trump administration is not ready for the 2020 census and is at risk of undercounting minority communities.

A worker passes out instructions on how fill out the 2020 census during a town hall meeting in Lithonia, Georgia. (AP Photo/John Amis)

One of several court challenges involving the once-a-decade count, the civil rights group argues the alleged underfunding of outreach programs could result in an underrepresentation of minority and historically disadvantaged populations.

The NAACP and Prince George’s County, Maryland, first filed their lawsuit in March 2018, but a federal judge dismissed the case after finding the plaintiffs lacked standing because they had not suffered a concrete injury.

While a three-judge panel of the Richmond-based appeals court upheld the dismissal of the NAACP’s claims under the Administrative Procedures Act, the judges remanded the case for further consideration of claims made under the Constitution’s enumeration clause, which calls for a census once every 10 years.

“We… hold that delayed adjudication would result in hardship to the plaintiffs,” wrote U.S. Circuit Judge Barbara Milano Keenan, a Barack Obama appointee.

She disagreed with the lower court’s finding that the census must occur before a legal challenge to it could be brought.

“The Supreme Court squarely has held that it is ‘not necessary’ for courts ‘to wait until the census has been conducted’ to consider challenges to the Census Bureau’s planned procedures, ‘because such a pause would result in extreme—possibly irremediable—hardship,’” Keenan wrote, citing the high court’s 1999 decision in Department of Commerce v. U.S. House of Representatives.

Keenan was joined on the panel by Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, and U.S. Circuit Judge Julius Richardson, appointed by President Donald Trump.

NAACP general counsel Bradford M. Berry said in a statement Thursday that the unanimous ruling “moves us closer to our goal of ensuring that African Americans and other historically undercounted communities are fairly and accurately counted in the 2020 census, a necessary predicate to equal representation in Congress and state legislative bodies.”

“An accurate count will also ensure that traditionally underserved communities receive their fair share of the billions spent each year on federal program payments in such critically important areas as education, transportation, and health care,” Berry said.

The U.S. Census Bureau did not respond to a request for comment Thursday.

While the case originated in 2018, the NAACP used records from a Freedom of Information Act settlement between the NAACP of Connecticut and the Census Bureau to bolster its argument. Among the concerning information for the group was a planned reduction in staffing from 600,000 field workers to 400,000 and only about 40,000 canvassers, down from 160,000 in 2010.

At oral arguments, Justice Department attorneys defended the plan by promising modern technological fixes, such as a digital census form submission, to address issues faced in the past. They argued these plans, which include the staff reductions, could save about $1 billion.

But Chief Judge Gregory, who specifically questioned staff reductions at the October hearing, expressed concern in a concurring opinion Thursday over the Census Bureau’s ability to fulfill the mandated headcount in such a way.

“If Congress is in violation of the enumeration clause’s mandate, it cannot take refuge behind the fig leaf of deference to administrative procedure,” the judge wrote after clarifying each government branch’s role in making sure the census was done properly. “Nothing is more existential to the preservation of the ‘Republic’ than requiring an ‘actual enumeration’ without ‘partiality or oppression.’”

More notably, the Trump administration’s addition of a citizenship question to the census was blocked earlier this year after the U.S. Supreme Court found the agency’s reason for adding it was “contrived.”

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