Census Work Has Been Winding Down, But A Judge Says It Needs To Press On For Now

Sep 6, 2020
Originally published on September 8, 2020 9:53 am

Updated at 12:51 p.m. ET on Sept. 8

The Trump administration must, for now, stop winding down in-person counting efforts for the 2020 census, a federal judge in California ordered on Sept. 5, while a legal fight over the shortened schedule for the national head count continues.

The temporary restraining order issued by U.S. District Judge Lucy Koh in the Northern District of California comes after challengers led by the National Urban League filed an emergency request as part of a federal lawsuit — both of which cite NPR's reporting. The order is expected to remain in effect until a court hearing is held on Sept. 17 for the plaintiffs' request for a court order that would require counting to continue through the end of October.

A coalition that includes civil rights groups and local governments, as well as the Navajo Nation and the Gila River Indian Community in Arizona, is trying to force the Census Bureau to abandon a last-minute schedule change that cuts counting a month short to end on Sept. 30, instead of Oct. 31, which was originally chosen by the bureau to make up for delays caused by the coronavirus pandemic.

"Today's ruling buys the census some precious and indispensable time by barring the administration from shutting down the count while the federal courts are still considering our request for relief," Thomas Wolf, a senior counsel at the Brennan Center for Justice who is helping to represent the plaintiffs, said in a statement on Sept. 5 after the court order's release.

The Justice Department, which is representing the bureau in the lawsuit, declined to comment on the court order, spokesperson Mollie Timmons said Sunday in an email to NPR.

The bureau's chief spokesperson, Michael Cook, told NPR on Sunday that the agency was preparing guidance to distribute soon to workers at its regional and local offices about how to comply with the court order.

According to a court filing, the bureau is now directing managers at its local offices to refrain from "releasing" door knockers and census field supervisors in areas that are in later stages of the in-person counting operation. The bureau has removed Sept. 11 as the date when all areas are eligible for the "closeout" phase, which now only applies to areas where the rate of "enumerated" housing units has hit 90% — an increase from the 85% requirement under the shortened census schedule. This change allows the bureau to "collect more quality data," the bureau's latest guidance to field managers says.

The judge concluded that the order is needed now because the challengers are likely to suffer from "irreparable harm."

"Because the decennial census is at issue here, an inaccurate count would not be remedied for another decade, which would affect the distribution of federal and state funding, the deployment of services, and the allocation of local resources for a decade," the judge wrote.

The order highlighted part of a sworn statement by Al Fontenot, the associate director for the 2020 census, who confirmed that the bureau has already started letting go some of its temporary workers in areas that have "completed their work."

"It is difficult to bring back field staff once we have terminated their employment," warned Fontenot, who suggested that the earlier a court were to order the administration to extend counting, the more census workers the bureau would likely have on staff.

Without that extra time, the challengers are concerned that the bureau will not be able to adequately conduct the constitutionally mandated count of every person living in the U.S., especially people of color, immigrants and those in other historically undercounted groups.

"Ensuring a complete and accurate 2020 Census is one of the most important civil rights issues of the day," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law, which is helping to represent the lawsuit's plaintiffs. "We will continue to hold this administration accountable in its repeated attempts to omit people of color, immigrants and other vulnerable populations from the 2020 Census."

In response to a question by NPR during a July 8 press briefing, Fontenot said the bureau was "past the window" of being able to provide the latest census numbers to the president by Dec. 31.

Still, after publicly supporting extensions to the census timeline, the Trump administration mysteriously made an about-face in August when the bureau announced that it was speeding up its efforts in order to deliver the first batch of numbers to the president by year's end. That was even after the administration asked Congress to push back legal deadlines for reporting census results, which are used to determine the distribution of political representation and federal funding among states and local communities for the next decade.

A day after NPR reported that the bureau was ending door-knocking efforts in some areas as early as Sept. 18, Justice Department attorneys confirmed in a court filing that the bureau has "already begun taking steps to conclude field operations," while warning that any court order "could not be implemented at this point without significant costs and burdens" to the bureau.

In his sworn statement, Fontenot emphasized, wishing to be "crystal clear," that if a court were to order counting to continue past Sept. 30, the bureau would not be able to meet the Dec. 31 deadline for the first set of census numbers. He noted that the bureau "simply cannot shorten" the time left for processing census results again, after it was already truncated to about three months.

Fontenot added that the possibility of "continual, conflicting, and evolving court orders" is "particularly troubling."

"While Census Bureau staff have demonstrated considerable resilience and flexibility during this difficult year, some certainty as to the amount of time available to conclude data collection and post processing will increase the likelihood of a successful outcome," Fontenot said.

In a similar federal lawsuit in Maryland, attorneys for another group of challengers are set to appear virtually for a hearing on Sept. 21 about their request to block the administration from ending census efforts earlier than previously scheduled.

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LULU GARCIA-NAVARRO, HOST:

We have news of an unusual court ruling that is complicating the 2020 U.S. Census. The Trump administration has been winding down the legally mandated national headcount in some parts of the country. But a federal judge in California has issued an emergency ruling ordering the Census Bureau to press on, at least for now. NPR's Hansi Lo Wang covers all things census-related for us. And he joins us now. Hi.

HANSI LO WANG, BYLINE: Good morning, Lulu.

GARCIA-NAVARRO: What does the court order say about what the Census Bureau has to do?

WANG: Yeah. This is a temporary restraining order by U.S. District Judge Lucy Koh in Northern California. And it basically forces the Census Bureau to hit pause nationwide on any winding down of door knocking, other on-the-ground work to get a count of every person living in the U.S. until there's a court hearing on September 17.

This is a hearing for a lawsuit led by the National Urban League, which is trying to push for more time for the census. And, you know, it's hard to overstate how influential these numbers are for the next 10 years. It's a count that's required by the Constitution, determines each state's share of congressional seats, Electoral College votes, trillions in federal funding for Medicare, Medicaid, other public services. And there has been pressure to cut counting short by a month because the Trump administration wants it done sooner rather than later.

GARCIA-NAVARRO: What does this mean for the census workers who have been going out door to door across the country?

WANG: A spokesperson for the bureau tells me they're still figuring that out. Households can still fill out an online form at my2020census.gov. But this court order is likely to add to the mess that is the 2020 census right now. The main issue here is that there's been a mysterious, last-minute move by the Trump administration - that originally, because of the pandemic, publicly said back in April that the bureau should get more time to count, even asked Congress to push back legal deadlines for results into next year.

But then I broke a story in late July that it apparently changed its mind and directed the bureau to finish counting soon so that President Trump, even if he doesn't win reelection, can receive the first set of results this year. That's what's required by current federal law. But top bureau officials have said publicly, since May, that they can no longer deliver a complete and accurate count by the end of December.

GARCIA-NAVARRO: I mean, that is extremely problematic. You've mentioned how important this is. What could go wrong if the Census Bureau does not have enough time for this count?

WANG: There's a leaked document from inside the bureau that warns of serious errors in the counts because the bureau might find mistakes in the data after they stop counting. And they won't have time to fix them. And another part of the issue here is about 4 in 10 households right now have not filled out a census form on their own. And federal law says census information can't be used against them, but the government - by the government or in court. But the bureau's door knockers need time to convince them to trust the government. And the bottom line here is that there is an existing problem with the census that could be made worse - that decade after decade, the census has undercounted Black, Latino, Asian, Pacific Islander and American Indian populations while overcounting white people.

GARCIA-NAVARRO: Four in 10 - that's extraordinary. So where does the census go from here?

WANG: I'm watching to see what happens on this court hearing on September 17. There's also another lawsuit in Maryland trying to extend a census schedule - also watching to see what might happen in Congress, part of the coronavirus relief negotiations. Congress could play a key role here if they change the legal deadlines for reporting census results.

GARCIA-NAVARRO: That was NPR's Hansi Lo Wang, who's covering the 2020 census for us. Thank you very much.

WANG: You're welcome, Lulu. Transcript provided by NPR, Copyright NPR.