The Census Bureau’s new “target date” to end in-person census counting on Oct. 5 could leave as many as 10 states less than fully counted, according to agency documents released in court Tuesday.
The new date, announced Monday by Commerce Secretary Wilbur Ross in a Census Bureau tweet, would allow the agency to meet a Dec. 31 statutory deadline for delivering apportionment data. The administration shortened its original timeline by a month, to Sept. 30, to finish the census in time to meet that deadline.
Last week, however, a federal judge ordered the Census Bureau to keep counting into October, ruling the shortened timeline may have violated administrative law.
During a hearing late Tuesday, U.S. District Judge Lucy Koh of the Northern District of California said the administration’s new ending date violated her order.
“This whole October 5 schedule adjustment, replan, banana, whatever you want to call it, is basically, in its own words, is trying to implement an enjoined date,” Koh said.
She then scheduled a hearing Friday to consider whether to hold the government in contempt for disregarding her order.
Government attorneys pushed back on that argument, saying it wanted to have options in case the 9th Circuit Court of Appeals allows the census to end.
Justice Department attorney August Flentje questioned "the notion that we are going to be placed in contempt for contingency planning… It's just not a contempt situation.”
Numerous internal Census Bureau documents were released ahead of Tuesday's hearing. Among them, an email by Census Bureau deputy director Ron Jarmin that said setting a new Oct. 5 deadline "allows us to meet the 12/31 deadline should that be reinstated on appeal.” That email was dated Sept. 25, the day after Koh's order to keep the count going.
That email and other documents show the agency had considered continuing operations until all states hit the goal for the in-person count — 99 percent of households.
“This option would preclude meeting the 12/31 date, but furthers the goal of a complete and accurate 2020 Census,” Jarmin wrote of this other option.
By pursuing the Oct. 5 end date, agency documents projected at least one state would fall short of that 99 percent threshold: Alabama. As many as 10 could end up falling shy of that mark as recent storms, wildfires and late starts due to the coronavirus pandemic have scrambled counts nationwide, particularly in the southern states.
The new end date may also conflict with findings in Koh’s ruling. She found the agency did not balance the risks to accuracy from a shortened count when it decided on the Sept. 30 date in its “replan.”
“[The government] adopted the replan to further one alleged goal alone: meeting the Census Act’s statutory deadline of December 31, 2020 for reporting congressional apportionment numbers to the president,” Koh wrote. “In the process, [the government] failed to consider how [the government] would fulfill their statutory and constitutional duties to accomplish an accurate count on such an abbreviated timeline.”
The decisions about the last few days of in-person counting could have serious consequences for congressional apportionment. Three of the states with the lowest percentage of households counted were projected to gain or lose congressional seats next year: Montana, Florida and Alabama.
Census results are also used to draw legislative maps and guide more than $1.5 trillion in federal spending annually.
The agency’s rush to wrap up the count may be causing other problems. Several documents show that in other areas of the country the agency has increased the use of “proxy interviews” — asking a neighbor or landlord, which the agency considers less accurate than a direct interview — in order to meet goals.
Even where the agency hits its state-level goal, tribal areas and other localities may fall short, according to the documents.
The Census Bureau had shut down many of its counting operations in March due to the coronavirus pandemic. As a result, the agency originally requested that Congress pass legislation to extend the statutory deadline for the census by 120 days so the agency could deliver apportionment data by the end of April and detailed legislative mapmaking data by the end of July.
The schedule for the count changed around the time President Donald Trump signed a memorandum to exclude undocumented immigrants from apportionment. Trump signed the memo in July, but that effort but has since been enjoined amid a Supreme Court battle.
Shortly after Trump issued the memo, the administration stopped pursuing a deadline extension. In August, the Census Bureau announced it intended to stop in-person counting by Sept. 30 to deliver the apportionment totals by the end of the year.
Congress has several bills with bipartisan support to extend the deadline, all of which the White House has resisted. On Monday, House Democrats introduced their latest version of a coronavirus relief package, one that would extend the census deadline and mandate counting continue through the end of October.