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Appellate judges let 2020 census continue through October

ORLANDO, Fla. — A panel of three appellate judges on Wednesday upheld a lower court order allowing the 2020 head count of every U.S. resident to continue through October.

ORLANDO, Fla. — A panel of three appellate judges on Wednesday upheld a lower court order allowing the 2020 head count of every U.S. resident to continue through October. But the panel struck down a provision that had suspended a year-end deadline for submitting figures used to decide how many congressional seats each state gets.

The ruling by the Ninth Circuit Court of Appeals panel in San Francisco upheld part of U.S. District Judge Lucy Koh’s preliminary injunction last month, and rejected part of it.

Koh’s preliminary injunction suspended a Sept. 30 deadline for finishing the 2020 census and a Dec. 31 deadline for submitting numbers used to determine how many congressional seats each state gets — a process known as apportionment. Because of those actions, the deadlines reverted back to a previous Census Bureau plan that had field operations ending Oct. 31 and the reporting of apportionment figures at the end of April.

By issuing the injunction, Koh sided with a coalition of civil rights groups and local governments which had sued the Trump administration, arguing minorities and others in hard-to-count communities would be missed if the counting ended in September instead of October. But Trump administration attorneys had argued the Census Bureau was obligated to meet the congressionally mandated requirement to turn in apportionment numbers by Dec. 31.

Koh also struck down an Oct. 5 end date that the Commerce Department, which oversees the Census Bureau, had pushed after the injunction, saying it violated her order.

Hours after Wednesday's ruling, the Trump administration asked the U.S, Supreme Court to put an immediate hold on the injunction while it appeals.

Acting Solicitor General Jeffrey Wall wrote in an application to the Supreme Court that the appellate court's ruling will still force the Census Bureau to violate the Dec. 31 deadline. He added the decision also conflicts with the district judge's rationale for issuing the injunction, calling it “an unprecedented intrusion" into the Trump administration's ability to conduct the census.

“Because courts are not equipped to manage census operations, it is not surprising that the district court erred in its assessment of how accurate the census will be," Wall said.

Supporters of the longer head count schedule praised the decision.

“The courts keep speaking even if the Trump administration is not listening,” said Julie Menin, who heads New York City’s census outreach efforts. “The Trump administration has lost time and time again in their attempts to interfere with the 2020 Census, and we welcome the Ninth Circuit’s decision, which preserves a fair and accurate census timeline.”

Responding to the pandemic, the Census Bureau in April proposed extending the deadline for finishing the count from the end of July to the end of October and pushing the apportionment deadline from Dec. 31 to next April. The proposal to extend the apportionment deadline passed the Democratic-controlled House, but the Republican-controlled Senate didn’t take up the request. Then, during the summer, bureau officials shortened the count schedule by a month so that it would finish at the end of September.

The Republicans’ inaction coincided with a memorandum President Donald Trump issued, which was later ruled unlawful by a panel of three district judges in New York, directing the Census Bureau to exclude from the apportionment count people in the country illegally. The Trump administration is appealing that case to the Supreme Court.

By sticking to the Dec. 31 deadline, the apportionment count would be under the control of the Trump administration no matter who wins the presidential election next month.

While allowing the head count to continue through October leaves less time to crunch the numbers before the Dec. 31 deadline, Trump administration officials and outside advisory groups had said that the Census Bureau would be unable to meet that deadline “under any conditions," the appellate judges said.

Any harm caused by shortening the time for data processing after the count was outweighed by the harm that would come from ending the count early, they wrote.

The appellate judges also noted that just because the Dec. 31 deadline can’t be met practically doesn’t mean the court should require the Census Bureau to miss it.

“Perhaps the Bureau will find that with an extraordinary effort or changes in processing capacity, it is able to meet its deadline," the judges said. “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 census determines how many congressional seats and Electoral College votes each state gets and how $1.5 trillion in federal funding is distributed each year.

As of Tuesday, 99.7% of households nationwide had been counted, a figure that surpassed the completion rate in 2010, according to the Census Bureau.


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Mike Schneider, The Associated Press