Trump Officials Ask Supreme Court To Block Order That Extends Census Counting

Oct 7, 2020
Originally published on October 8, 2020 10:18 am

Updated at 8:44 p.m. ET

The Trump administration is asking the Supreme Court to allow counting for the 2020 census to end soon.

In an emergency request on Wednesday, Acting Solicitor General Jeffrey Wall said that the Census Bureau must immediately wrap up its field operations, now that it's passed the bureau's internal target date of Oct. 5, in order to have a chance of meeting the legal deadline for delivering the first set of census results to President Trump by year's end.

"With October 5 having come and gone while the court of appeals was considering the stay application," Wall wrote, "every passing day exacerbates the serious risk that the district court's order to continue field operations and delay post processing will make it impossible for the Bureau to comply with the December 31 statutory reporting deadline."

The administration's move comes hours after a federal appeals court rejected its earlier attempt to block a lower court order that extended the counting timeline for the 2020 census in order to give the bureau more time to get an accurate count.

A three-judge panel of the 9th U.S. Circuit Court of Appeals found that missing the Dec. 31 reporting deadline "would likely not invalidate" the census numbers delivered to the president and that Congress could eventually step in to approve an extension after the numbers are handed off past the deadline, as lawmakers did for the national head counts from 1810 through 1840.

For now, the judges ruled, the tallying of the country's residents must keep going through Oct. 31.

The order by the 9th Circuit panel — which included Judges Susan Graber, William Fletcher and Marsha Berzon — did set aside part of the lower court order that had blocked the administration from trying to meet the Dec. 31 deadline, noting that it is wary of courts ordering a federal agency to miss a deadline required by law.

The Census Bureau's associate director for the 2020 census, Al Fontenot, has said in a sworn statement that if field operations for the census continue past Oct. 5 — as they have — the bureau is not likely to produce "a complete and accurate census" by Dec. 31 because of time needed to process all of the data.

Career officials have warned that the bureau has already scaled back its plans for quality checks down to about three months and that cutting them down further would increase the risks for inaccuracy.

The 9th Circuit judges found that leaving the Dec. 31 date "as an aspiration will have no immediate impact."

"Perhaps the Bureau will find that with an extraordinary effort or changes in processing capacity, it is able to meet its deadline," the judges wrote. "Or the Department of Commerce may seek and receive a deadline extension from Congress. Or perhaps the Bureau will miss the deadline, as statement after statement by everyone from agency officials to the President has stated it would, due to the extraordinary circumstances of the pandemic."

The exact end date for this year's census counting has been seesawing for weeks. Last week, U.S. District Judge Lucy Koh issued a lower court order to clarify an earlier order that requires the bureau to stick with the longer schedule it had originally proposed in response to delays caused by the coronavirus pandemic. Under Koh's order, the bureau sent a mass text to census workers that said the bureau will keep collecting data through Oct. 31.

Since May, top career officials at the bureau have warned publicly that the agency can no longer deliver the latest state population counts to the president by the end of the year.

Those numbers are used to determine each state's share of the 435 seats in the House of Representatives, as well as votes in the Electoral College, for the next decade. Those are also the same numbers from which Trump wants to exclude unauthorized immigrants despite the Constitution's requirement to include the "whole number of persons in each state."

If the bureau delivers the state counts by Dec. 31, Trump would be able to attempt to make that unprecedented change to who counts when reapportioning House seats among the states, even if he does not win reelection.

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STEVE INSKEEP, HOST:

The Trump administration is trying again to finish the U.S. census. Late yesterday, the administration appealed to the Supreme Court to allow counting to stop right away. Two lower courts have already told the Census Bureau to keep on counting until October 31. NPR's Hansi Lo Wang has covered the census all along and is on the line. Good morning.

HANSI LO WANG, BYLINE: Good morning, Steve.

INSKEEP: What exactly does the administration want from the Supreme Court now that we're up to October 8?

WANG: This - the Trump administration wants the Supreme Court to block an order by a judge in California that requires counting throughout October 31 because they say if they end soon, they - there may be a chance that they can meet this legal deadline of December 31 for reporting the new state population counts used to reallocating seats in the House of Representatives. But career officials at the Census Bureau have said for months they can't meet that deadline because of delays caused by the pandemic.

INSKEEP: And as your research has shown, there have been past censuses where the deadline was missed without any ill effects. So why is the administration so focused on it?

WANG: Meeting this December 31 deadline means that even if President Trump doesn't win reelection, he would still receive these new population counts from the - of each state while he's still at the White House. And that makes it more likely that he can try to make an unprecedented change to these numbers that determine each state's share of seats in Congress.

You know, the 14th Amendment of the Constitution says those counts must include, quote, "the whole number of persons in each state." President Trump wants to exclude unauthorized immigrants. And federal courts - a federal court in New York has already ruled President Trump doesn't have the power to make that change. But the administration is trying to get the Supreme Court right now to overturn that ruling.

INSKEEP: How is the constant court battling and uncertainty affecting the actual count?

WANG: It's thrown this last stage of counting further into just chaos. You know, there's been such a rush over these past few weeks in some parts of the country because of these uncertain timelines and schedules have really just raised questions about the accuracy of the counting efforts. A lot of census workers may have been under pressure to get the count done sooner and may have been focusing more on that rather than getting a good, accurate count and maybe have relied on neighbors of unresponsive households to get information.

And Census Bureau research has shown that increases the risk for inaccuracy, especially about people of color, other historically undercounted groups. And that could have long-term implications because the census is about how power and money are shared in this country over a decade. We're talking about, again, seats in Congress, votes in Electoral College, which determines who becomes president in 2024 and 2028, as well as trillions in federal money for health care, schools and roads that are a tie guided by census numbers, again, for the next 10 years.

INSKEEP: That all sounds kind of dire. But we did hear a reassuring sounding number from Wilbur Ross, the commerce secretary, when he was on this program with you and I yesterday. He kept saying they're just about complete with the counting. Let's listen.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

WILBUR ROSS: We didn't need as many calendar days to complete the census. And that's why we are already at - 99.7% of all the households have already been enumerated. And that's a tenth of a percent better than in 2010.

INSKEEP: That is an impressive-sounding number. But is it impressive?

WANG: It's a national rate, Steve. It's not an indicator of how complete the census is in every state. Career officials at the bureau have set a goal of 99% in each state. As of Tuesday, four states have not yet hit 99% - South Carolina, Alabama, Mississippi, Louisiana. And it's an open question whether or not they will hit it by the time counting ends.

INSKEEP: OK. Hansi, thanks for the fact-checking and all your reporting, really appreciate it.

WANG: You're welcome, Steve.

INSKEEP: That's NPR's Hansi Lo Wang. Transcript provided by NPR, Copyright NPR.