A federal appeals court has rejected another request from the Trump administration to set aside part of a lower court order that extends the counting timeline for the 2020 census.
The tallying of the country’s residents must keep going through Oct. 31 for now, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Wednesday.
The administration has signaled it’s prepared to ask the Supreme Court next to allow the bureau to stop counting soon.
Still, 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 legal deadline of Dec. 31 for delivering the first set of census results to President Trump.
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.”
While they warned against courts ordering a federal agency to miss a deadline required by law, the judges added 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.
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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