U.S. District Judge Lucy Koh in the Northern District of California said late Tuesday that the Census Bureau cannot cut short counting operations on Oct. 5 or present the final population count by Dec. 31 as planned.
She said both deadlines were at odds with her previous ruling and suggested she could move ahead with contempt proceedings.
Administration lawyers say they want to stick with the December deadline because that's what was mandated by Congress – a deadline set before the pandemic hit.
“If there’s been a violation of the order there should be consequences,” Koh said at the conclusion of a conference hearing Tuesday.
The stakes of the case are high. The decennial population count is not only used to allocate some $1.5 trillion in federal money, it also decides the division of congressional seats in the House – a process called “apportionment.”
If Koh’s ruling stands, that final deadline for apportionment no longer guarantees that Trump will be the one to oversee it. Instead of Dec. 31, the Census Bureau wouldn’t present its final numbers until spring of 2021 – after the upcoming election and a possible inauguration if Trump loses.
Trump has already said he’d like to exclude undocumented immigrants from apportionment although that order has been blocked in the courts for now.
Another major issue is accuracy. Counting every man, woman and child in the U.S. is a months-long endeavor that includes knocking on doors and quality checks on complicated data sets. While the Census Bureau has reported that 98 percent of households are counted already, experts have questioned the accuracy of that count because operations were suspended this spring because of COVID-19.
The result, experts say, has been a reduced effort to canvass neighborhoods with low-response rates, which often includes immigrant communities and people of color.
That potentially gives Trump and Republicans the opportunity to present a final count for congressional districts that omits poor or minority populations.
“The quicker they count it, the more likely they are going to undercount some of those people who are not in his political camp,” said William Frey, a research professor with the Population Studies Center at the University of Michigan and senior fellow at The Brookings Institution.
Internal emails released in the latest court battle suggest that Census Bureau officials agreed the compressed timeline would cause serious problems. In one email, Timothy Olson – associate director for field operations – said the plan was “ludicrous” and “any thinking person who would believe we can deliver apportionment by 12/31 has either a mental deficiency or a political motivation.”
The Census Bureau did not respond to a request for comment. Officials have said previously that it remains committed to a “complete count, provide accurate apportionment data, and protect the health and safety of the public and our workforce.”
Beth Lynk, director of the Census Counts campaign at the Leadership Conference on Civil and Human Rights, said more time would still help the census process the data and conduct quality checks to ensure an accurate count.
If the administration sticks to its original timeline, she said, “this is going to hurt every state. This is going to hurt every community, and it really would be would be devastating."
Also blowing the whistle are the temporary workers hired by the federal government to knock on doors.
Jimmy Greer, a census worker in El Paso, Texas, said last he was told two weeks ago his team still had a long way to go in ensuring his assigned neighborhoods were correctly counted.
Then came Koh’s Sept. 24 preliminary injunction in response to a lawsuit led by the National Urban League and other civil rights groups and city governments. Koh, an Obama appointee, said the Trump administration hadn’t provided adequate rationale on the truncated timeline.
But the next day, as the administration prepared an appeal, Greer he said he got an alarming text from his supervisor.
“Even though the courts have made a decision; nothing has changed,” Greer’s supervisor wrote in a text shared with ABC News and filed in federal court.
“Our deadline to count everyone is still Sept. 30, 2020,” the text stated, citing a deadline set previously by the Commerce Department to finish counting efforts.
“I will keep everyone as updated as possible. DO NOT SPREAD RUMORS, OR MAKE ASSUMPTIONS, STICK TO THE FACTS! The facts are, we are still moving forward with the original plan to finish by Sept. 30.”
Greer contacted the judge and shared the texts with the court. In its response filed in court, federal lawyers said Greer’s manager sent that message before she received guidance from her superiors on the ruling.
Greer said he stands by waiting for more cases to work on and doors to knock.
“I was upset that we weren’t going to get the job done,” Greer said in a phone interview Tuesday.