Judge Rips Trump Administration For Games It’s Played In Rushed Census Case

WASHINGTON, DC - OCTOBER 21: U.S. Secretary of Commerce Wilbur Ross (Photo by Alex Wong/Getty Images)
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December 23, 2020 12:02 p.m.

A federal judge didn’t hold back in recounting the Trump administration’s sketchy behavior in the case challenging its decision to rush the 2020 census.

U.S. District Judge Lucy Koh, of Northern California, on Tuesday night denied the Justice Department’s request to dismiss the case, which alleges that Commerce Secretary Wilbur Ross violated administrative law and the Constitution when he truncated the count timeline earlier this year by several months.

Koh also denied the Department’s request to put the case on hold. While explaining her legal rationales for the decisions, Koh’s 56-page opinion ran through the various ways that the administration had acted shadily in the litigation.

The Justice Department has claimed in the case that the Census Bureau had to speed up the count because Congress never granted a four-month extension — requested at the start of the pandemic — to the statutory deadlines the bureau faces for delivering the data. Koh’s opinion indicated why she was highly skeptical of that explanation.

The challengers in the case allege that the decision to rush the count was linked to President Trump’s efforts to exclude undocumented immigrants from the congressional apportionment count. Had the bureau been given the extra time it said it needed to finish the survey, that apportionment data would not be ready until after the inauguration.

Here are some of the ways in which Koh called “BS” on the claims that the Justice Department is making in the case.

Judge Doesn’t Buy DOJ’s Stated Reasons For Why Ross Sped Up The Census

Koh discussed at length why she wasn’t convinced by the DOJ’s claims about why, in late July, the Census Bureau was ordered to come up with a plan that would expedite the census count so that apportionment data would be ready by the end of the year. She pointed out that President Trump himself had initially supported giving the bureau four extra months to produce that data. On other occasions in census history, Koh noted, the bureau had blown through the deadlines without first getting congressional approval to extend them. Furthermore, she cited internal bureau documents from April indicating that administration lawyers had concluded that the Constitution’s mandate for a complete and accurate count trumped any statutory obligation the bureau faced for producing the data by Dec. 31.

Koh also brought up internal emails showing that, even after there were signals that the White House was reversing on the extension request, bureau officials were continuing to lobby the Commerce Department to grant the bureau more time to finish the count.

In one such email, a top Census official said that it was “critical” that they elevate the reality of how the COVID-19 outbreak disrupted the count, “especially in light of the push to complete NRFU asap for all the reasons we know about.”  [NRFU refers to “non response follow up,” a phase in the data collection stage of the census].

“Those reasons are not in the administrative record,” Koh said, hinting that the administration has not been candid about its motivations for cutting the census short.

Judge Bashes The Government’s ‘Egregious’ Violations Of Her Previous Orders In The Case

The judge recounted how the administration “repeatedly” violated her orders in the case, so she could discuss how the most “egregious” of those violations undermined the Justice Department’s arguments in the lawsuit.

Specifically, in September, Koh issued a preliminary injunction blocking the administration from implementing the expedited count timeline, which would have ended data collection on Sept. 30, so that the data could be produced by Dec. 31.

Instead of going back to the extended timeline, which would have allowed for continued data collection through Oct. 31, the Census Bureau announced just minutes before another hearing was scheduled in the case that data collection would end on Oct. 5. Internal emails revealed that Secretary Wilbur Ross picked that day because it would still allow the bureau to deliver the data by Dec. 31, one of the deadlines that Koh had already blocked the administration from implementing at that point. The emails, between a top Census official and Ross, also revealed that the Trump apportionment policy was discussed in this context. In the case, the administration has repeatedly claimed the expedition order and the policy were not linked.

Those emails “made clear,” Koh said, that the Dec. 31 deadline was “intertwined” with Trump’s anti-immigrant apportionment policy.

A Census Official’s Declaration In The Case Was Contradicted By His Own Words Elsewhere And The Reality On The Ground

Some of Koh’s harshest words came when she was discussing a declaration the administration submitted from Al Fontenot, a career official and Census Associate Director.

In the Sept. 4 submission, Fontenot said that the bureau would still be able to meet a key metric for the success of the count, even under the expedited timeline.

But he contradicted that assertion, Koh said, in public remarks later that month. Fontenot admitted that, due to various natural disasters including the pandemic, he did not know whether the field counting operations could be finished by the scheduled date under the truncated timeline.

Then Fontenot filed another submission that “tried to disavow” those remarks, an unconvinced Koh said.

Data on the counting process later revealed that by Sept. 30 — when the administration wanted to shut off response to the census under the expedited timeline — several states they were short of meeting the key metric.

“Thus, Defendants would have missed the completion rate requirement despite Associate Director Fontenot’s declarations under penalty of perjury that they would not,” Koh said.

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