Order to Finish Census Count Was Overreach, Feds Tell Ninth Circuit

(AP Photo/Paul Sancya)

(CN) — The Trump administration asked a Ninth Circuit panel Monday to stay a lower court order barring the U.S. Census Bureau from ending its decennial count of the population before the job is done. 

Lawyers from the Department of Justice argued U.S. District Court Judge Lucy Koh’s order barring the Trump administration from wrapping up its data collection by the end of September amounted to unprecedented interference by the judicial branch into the affairs of the executive branch. 

“The census bureau should not be subject to judicial second-guessing and micromanagement,” said Sopan Joshi, arguing on behalf of the Trump administration. 

The three-judge panel — all Bill Clinton appointees — appeared inclined to stay parts of the preliminary injunction that do not directly relate to collecting data in the field, saying that only that aspect of the process would suffer irreparable harm if not for the preliminary injunction. 

“The data processing portion is not unfixable in a major way,” said U.S. Circuit Judge Marsha Berzon. 

Melissa Arbus Sherry, arguing for the plaintiffs, said the preliminary injunction is necessary to stop the U.S. Census Bureau because the data it has collected will be inaccurate if the bureau is allowed to stop the count. 

“They would begin shutting down immediately and fire hundreds of thousands of enumerators,” Arbus Sherry said.

Enumerators are census workers who collect data about households across the nation to give an accurate count. The census is not an academic exercise, as it determines the allocation of federal funding and different grants. 

Through a process called apportionment, the census determines how many representatives each state sends to Congress, which can impact the fundamental balance of power at the federal level. 

The plaintiffs in the case, a coalition of civil rights groups, counties and cities, argue the U.S. Census Bureau’s plan to adapt to the coronavirus pandemic, called The Replan, was undertaken by the Trump administration as a willful attempt to undercount minority communities in blue states like California and New York.. 

By accelerating the timetable, the undercount will alter the funding allotments and apportionment, they argue. 

From a strictly legal perspective, plaintiffs say the U.S. Census Bureau is constitutionally obligated to conduct an accurate census and that the truncated timeline prevents it from doing so. 

The plaintiffs have pointed to numerous statements in the record that show census workers casting doubt on whether an accurate count can be made in time for the Dec. 31 deadline. 

“It is ludicrous to think we can complete 100% of the nation’s data collection earlier than Oct. 31 and any thinking person who would believe we can deliver apportionment by Dec. 31 has either a mental deficiency or a political motivation,” wrote associate director of field operations Timothy Olson in a July email to other officials.  

But Joshi painted a different picture Monday. 

He said 43 states, the District of Columbia and Puerto Rico are 99% complete and four others are 98% complete. Only three states are less than 98% complete and one of them, Louisiana, has filed briefs asking the court to allow the bureau to expedite the process. 

“This delay puts the census deadline of Dec. 31 in serious, serious jeopardy,” Joshi said. 

The deadline is a hard deadline mandated by Congress, Joshi said, and the bureau should have the discretion to change its operations during a pandemic to meet that deadline. 

The judges will take the matter under submission. They are expected to rule relatively soon.

Joshi asked the decision be swift so that if the stay is not granted the government could appeal the matter to the U.S. Supreme Court. 

U.S. Circuit Judges Susan Graber and William Fletcher rounded out the panel.

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