A federal judge on Tuesday suggested that Commerce Secretary Wilbur Ross may have violated her order blocking the administration from rushing the 2020 census count. The judge has ordered briefing on the matter.
Among U.S. District Judge Lucy Koh’s concerns was Ross’ announcement on Monday of a new “target date” for the census to complete its field counting operations by next week – an announcement which was apparently based on the very schedule she had previously blocked.
At one point at a hearing Tuesday evening, Koh suggested that the move could warrant contempt proceedings. She later said it was up to the parties challenging the expedited census schedule to decide whether they would request a contempt proceeding.
“You don’t have to call it contempt, you can call it something else,” she instructed their lawyer, Melissa Sherry.
Justice Department attorney August Flentje said the suggestions of contempt were not “fair” or “realistic.” He defended the administration’s move to continue to plan as if it will need to deliver the census’ apportionment data by the end of the year — one the deadlines the judge had previously enjoined — because it was possible that the deadline will be reimposed.
“If a violation of the order has been committed, there should be consequences,” the judge said.
The dispute is the latest in what has been a dramatic and quickly evolving legal fight over the administration’s efforts to wind down the census count, after it previously said that the Census Bureau should be given four extra months to finish it up because of the pandemic.
The Census Bureau’s own experts last month warned Ross that the truncated timeline risked “serious” errors in the count’s accuracy, according to documents released in the litigation.
Many observers — as well as officials within the Census Bureau — believe the push to expedite the count is related to President Trump’s directive that the administration seek to exclude undocumented immigrants from the census data that will be used to determine how many representatives each state gets to the U.S. House.
Forcing the Bureau to stick to the end-of-the-year apportionment data would guarantee that Trump would still be the president to implement the policy, which is being challenged in court, even if he loses his re-election.
The Justice Department has claimed that the Census Bureau has no choice but to speed up the count because Congress failed to grant the four-month extensions that the administration initially requested when the pandemic began to take hold this spring. The House has approved such extensions, and it appears that Senate Republican rank-and-file is open to the idea, but the Senate GOP’s leadership has yet to back such a proposal.
Judge Koh shot down the end-of-the-year deadline for delivering congressional apportionment last week. The order also blocked the Census Bureau from completing its data collection on Sept. 30, which was the plan under the truncated timeline.
The Census Bureau had said in April, when it was seeking the four-month deadline extensions, that data collection would last until the end of October.
Minutes before a hearing before Koh was scheduled to begin on Monday, the Census Bureau tweeted that Ross had set a “target date” for data collection to end on Oct. 5. Documents that the administration filed on Tuesday, pursuant to an order from the judge, showed that Ross had chosen that date because the Census Bureau told him that continuing the field counting operation any longer would preclude the bureau from meeting the Dec. 31 data delivery deadline.
“This October 5 date is doing exactly what I enjoined the defendants from doing,” Judge Koh said.
The judge ordered that the challengers file their submissions by Wednesday 11 a.m. P.T., and that the administration file its response by Thursday night. The challengers will then have an opportunity to file a reply before a hearing is held on the matter Friday at 3 p.m. PT.