Judge Orders White House to Produce Details of Census Schedule

(AP Photo/Paul Sancya)

(CN) — A federal judge ordered the Trump administration to produce documents related to the compressed census schedule that critics say will lead to an undercount that could cause some states to receive less federal funding while altering the balance of power in the legislative branch. 

U.S. District Court Judge Lucy Koh said the Trump administration’s “conduct has required compressing the case schedule” in a 10-page order denying the administration’s attempt to delay producing documents. 

Trump administration lawyers have argued they do not have the necessary time to comb through 88,000 pages of documents to ensure no personal or confidential information is accidentally made public through the court.

Koh, who has routinely tussled with Justice Department attorney Alexander Sverdlov during hearings, said the administration’s actions have necessitated a compressed schedule and that “time is of the essence” in getting the problem sorted out before the counting part of the process can begin.

“Defendants’ problem is of entirely their own making,” Koh wrote. “Defendants have known for nearly five months that they needed to produce the documents.”

The judge also noted that the records production request by the plaintiffs — a coalition of cities, counties and civil rights groups — closely mirrors that of the Government Accountability Office and the Trump administration should therefore have little problem in producing the documents during an accelerated timeframe. 

Nevertheless, Koh did provide the Trump administration recourse to address their confidentiality concerns, saying they could provide documents with such questions to a magistrate judge that could rule on whether they abide by privacy regulations. 

Government attorneys asked Koh to delay the document production date due to the burdensome amount, while plaintiffs accused the government of trying to run out the clock by using delay tactics until the relief being sought was no longer relevant. 

The National Urban League and other plaintiffs sued the U.S. Census Bureau in September after the agency finalized its plans to truncate the counting portion of the census.

Instead of delaying the overall deadline of Dec. 31, the Trump administration decided to shorten the period in which the bureau collects population data while also truncating the all-important follow-up phase from 11.5 weeks to 7.5 weeks. 

The administration said it was necessary to conclude early due to the pandemic, while critics say the administration is trying to undercount certain urban areas and areas with high concentrations of undocumented workers.

The undercount, the plaintiffs argue, will not only compromise the validity of the census data but will affect how federal funding is allocated. The plaintiffs say this will mar a process known as apportionment, where congressional seats are allotted to states based on population counts derived from the census.

Plaintiffs also expressed concern the deadline was moved ahead so the Trump administration could finish the process before President-elect Joe Biden is sworn in next month. However, documents leaked to the U.S. House of Representatives show the apportionment numbers will likely not be ready before the Jan. 20 deadline, meaning the Biden administration may have the final say over how the census is ultimately concluded.

Koh has already granted the plaintiffs a temporary restraining order, indicating she believes they are likely to succeed on the merits. The order prevented the Trump administration from ending the headcount portion early.

However, the Trump administration appealed and after a Ninth Circuit panel upheld the restraining order, the U.S. Supreme Court withdrew it without comment. Nevertheless, several aspects of the case remain to be litigated.

There are other cases related to the census pending in federal court, including one over whether undocumented workers should be included in the headcount.

On Monday, the Supreme Court declined to take up the Trump administration’s request to fast track that issue. The case may still be taken up during the court’s next session.

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