Monday, October 5, 2020
WASHINGTON – A federal judge reiterated her order Thursday that the Census Bureau continue its count until Oct. 31, saying plans to end earlier were “erroneous … unlawful” and they undermined the credibility of the count.
The ruling by U.S. District Judge Lucy H Koh came just five days before the bureau said it planned to stop field operations, contrary to Koh’s order from last month.
At stake is congressional representation and the potential loss of federal funding that could be skewed by an undercount. An official with the Arizona Complete Count Committee has estimated that a 1% undercount could cost the state $62 million a year in federal funding, or $620 million by the next decennial census in 2030.
When asked about the latest ruling, Arizona officials said they would work as long as they are allowed to improve the state’s response rate: As of Friday, 98.4% of Arizona households had been counted in the census, the 10th-lowest enumeration rate in the country.
Two Arizona tribes were among the groups that sued to extend census enumeration, arguing that an incomplete count could spell disaster for Native Americans and other minority communities.
“All Indigenous peoples have the right to be counted in the 2020 Census,” Navajo Nation President Jonathan Nez said in a statement Friday. The Navajo and the Gila River Indian Community joined the lawsuit in early September.
“The clarification and orders from Judge Koh are a step in the right direction, but the fight for our Navajo people to be counted continues in the Ninth Circuit Court of Appeals,” Nez said.
The Thursday night ruling by Koh was just the latest in a back-and-forth legal battle that has gone on for the last several weeks – and could continue if the Census decides to press ahead with an appeal.
“Judge Koh’s rulings have been incredibly important because they have been buying the census the time it needs to conduct a full, fair and accurate count that federal laws guarantee us and that we all deserve,” said Thomas Wolf, senior counsel and Spitzer Fellow with the Brennan Center, one of the attorneys challenging the Census Bureau.
The case revolves around the bureau’s shifting plans to complete its enumeration and deliver a count to the president by Dec. 31, as required by law. The original plan to end enumeration by July 31 was scrapped after COVID-19 halted bureau operations for weeks in the spring, and replaced by a plan to count until Oct. 31 and deliver a count next spring.
But the bureau in early August suddenly pivoted, setting Sept. 30 as the day to finish counting and reinstating the Dec. 31 deadline, sparking a lawsuit by groups who feared an undercount from the earlier deadline.
Last week, Koh agreed with plaintiffs in the case that ending the count on Sept. 30 would cause them to “suffer irreparable harm,” and she ordered the bureau to continue its count through October.
Even as it was asking for a stay – which Koh denied – to appeal the ruling, the bureau said last Friday in a statement that it “will comply with the Court’s order and continue our Nonresponse Followup Operation.”
That compliance didn’t last long. On Monday, the bureau announced that Oct. 5 would be the new target date to conclude 2020 Census self-response and field data collection operations.
Koh did not appear to be happy in her latest order.
“Defendants’ dissemination of erroneous information; lurching from one hasty, unexplained plan to the next; and unlawful sacrifices of completeness and accuracy of the 2020 Census are upending the status quo, violating the Injunction Order, and undermining the credibility of the Census Bureau and the 2020 Census,” she wrote Thursday. “This must stop.”
Koh instructed the bureau to notify employees of her injunction and to tell them to follow through with count until Oct. 31. The bureau said in a statement Friday that it had sent the message, instructing enumerators that Oct 5 was no longer their target completion date and they “should continue to work diligently and enumerate as many people as possible.”
Lawyers for the plaintiffs welcomed the judge’s latest action and questioned the bureau’s actions so far.
“The court was compelled to take this action and clarify something that should not have needed to be clarified, except for the facts that the Bureau had failed to take the necessary and logical steps that flowed from her preliminary injunction,” said an email from Ezra Rosenberg, co-director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law.
Wolf said the bureau could face contempt or other sanctions if it violates the order again.
Arizona officials, meanwhile, said they would continue work with the Census Bureau until the last day of the count, whether that comes Monday or at the end of the month.
“The Arizona Complete Count Committee intends to promote response until the final day and hours of the 2020 Census Count,” said committee Director Alec Thomson in an email. “We remained focused on Arizona’s complete and accurate count in the 2020 Census, regardless of when the count concludes.”