Panel Asked to Revive Suit Aimed at Avoiding Census Undercount

RICHMOND, Va. (CN) – The Fourth Circuit seemed open Wednesday to reinstating claims that the Trump administration is unprepared for the 2020 census, a population count activists say could exclude minority communities.

Oral arguments in the Richmond, Virginia-based federal appeals court pitted the NAACP and Prince George’s County, Maryland, against the U.S. Census Bureau over alleged underfunding of outreach programs that could result in a misrepresentation of minority and historically disadvantaged populations.

A federal judge in Maryland dismissed the case, finding the plaintiffs need to suffer a concrete injury before they could bring the challenge.

While students from Yale Law School’s Peter Gruber Rule of Law Clinic tried to sway the Fourth Circuit by questioning the steps the Census Bureau was taking under the Administrative Procedures Act, the three-judge panel seemed more interested in the lower court’s failure to address concerns under the U.S. Constitution’s enumeration clause, which calls for the once-a-decade headcount.

“We’re not talking about minor rights. We’re talking about a constitutionally mandated process that, since 1940, has undercounted people of color,” said Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee. “The court should be as accurate as possible.”

But from the Justice Departments’ standpoint, changes between the 2010 and 2020 census, including a reduction in the number of enumerators who physically go to homes to get a count of residents, reflects changes in technology that could save the federal government money on a process that is already set to cost over $1 billion.

“We’re doing everything we can,” said DOJ attorney Thais-lyn Trayer, who argued on behalf of the Census Bureau.

She stressed the census was an ongoing project and said the NAACP lawsuit failed to acknowledge both the ability of the plan to change and the agency’s commitment to meeting its requirements.

Trayer also pushed back on the idea that the courts have the authority to impose the remedy requested.

U.S. Circuit Judge Barbara Milano Keenan, a Barack Obama appointee, didn’t totally disagree with this theory. As Yale Law student intern Rachel Brown argued the agency was choosing not to hire more people and that choice amounted to a negative action and was therefore addressable by the courts, Keenan suggested otherwise.

“Don't you have to show [the agency] failed to take action?” the judge asked. U.S. Circuit Judge Julius N. Richardson, appointed by President Donald Trump, echoed this concern.

The judges also expressed concern about benchmarks the civil rights group appeared to be setting and whether they were backed up by federal law.

“The bureau must reach out and offer targeted communications” to undercounted communities, Brown argued, suggesting those requirements came from the Census Act and the enumeration clause.

In what appeared to be the winning argument of the day, Brown said the court should remand the case to further develop the record if the judges are unsure about certain details.

Keenan seemed to pull the same concerns out of Trayer when she posed the hypothetical of the agency hiring no enumerators in exchange for more technology and more interagency record sharing, which the Census Bureau has said is the basis for the reduction in staff.

“Not knowing the administrative record, no such claim exists here,” the DOJ lawyer said.

Richardson pounded on this point as well.

“You’re not suggesting if they hire no enumerators, that would not be reviewable?” he asked.

“They could review if they refused to do the census,” Trayer clarified, before stressing it was up to Congress to address issues with the census if such instances arose.

But Gregory harped on the broader issue of the constitutional nature of the census process. He pointed to concerns expressed in a review of the 2010 census, which found the count continued to fail communities of color. He wondered how the plan to use fewer enumerators would somehow remedy the problem.

“Is cutting [enumerators] going to make common sense?” he asked.

While all three judges seemed open to the idea of remanding the NAACP case, they did not say when a ruling would be handed down.

Wednesday’s hearing is one of many challenges that Trump’s census plan has faced. Documents obtained through a Freedom of Information Act settlement between the NAACP of Connecticut and the Census Bureau yielded some of the information used in the Maryland case.

Earlier and more prominent challenges involved Trump’s effort to add a citizenship question to the census. That failed when the U.S. Supreme Court kept in place an injunction blocking its addition, finding the government’s reason for adding it was “contrived.”

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