“The process of disbanding thousands of census workers will resume if an administrative stay is put in place, eliminating the Bureau’s ability to conduct field work,” said the ruling by Judges Johnnie Rawlinson and Morgan Christen. “Accordingly . . . staying the preliminary injunction would upend the status quo, not preserve it.”
The ruling comes a day after U.S. District Judge Lucy Koh said she might hold the government in contempt after it suddenly announced Monday that the count would end Oct. 5, which Koh said was a violation of her preliminary injunction. The injunction blocked the administration from stopping field operations Sept. 30.
In a filing Wednesday, lawyers for the plaintiffs, which include the National Urban League and several cities and counties, said they are not seeking a contempt finding at this time.
Noting that “Defendants could not possibly have thought that moving the end date for field operations by five days would be consistent with this Court’s order,” they asked Koh to compel the administration to submit a weekly report showing the court order is being complied with and requested a declaration from Census Bureau Director Steven Dillingham “unequivocally confirming ongoing compliance.”
They also asked Koh to require the bureau to look into households whose surveys were listed as complete “based on reduced operations or metrics” resulting from the attempt to end the count by Sept. 30 or Oct. 5.
In a second filing later on Wednesday, the plaintiffs asked Koh to issue a new temporary restraining order to prevent the bureau from continuing to wrap up the count in advance of a hearing before Koh scheduled for Friday.
The new filing described “a critical two day window between now and October 2 where Defendants will continue to wind down or alter Census operations, or otherwise engage in closeout proceedings, including but not limited to termination of various Census field personnel. Those actions…are happening now and threaten severe irreparable injury.”
The filing included an email exchange Monday in which Census Bureau deputy director Ron Jarmin told Commerce Secretary Wilbur Ross October 5 was the last day the bureau could collect data and still meet the Dec 31 deadline. The October 5 “target date” was announced half an hour later.
It also referred to “a trickle and then a flood of emails and filings from Census employees complaining…that they were not being told about the Court’s Orders, and that the Census Bureau was not in compliance.” In light of that, the plaintiffs also asked the judge to “direct Defendants to issue a new text message to all of their employees notifying them of the Court’s ruling, stating that the October 5 date is not operative, and stating that field data collection operations remain ongoing — and provide a copy of that text to the Court once sent.”
A response from the government is due Thursday night.
The end date of the census was thrown into disarray in early August when the government abruptly announced it would stop the count Sept. 30 rather than Oct. 31 as it had been planning to do since spring, when the coronavirus pandemic upended the bureau’s original schedule.
The new “Replan” aimed to deliver census data for House apportionment — allocating congressional seats to states — to the president by the original deadline of Dec. 31, while President Trump is still in office, rather than four months later as the bureau had planned as a result of the pandemic.
The announcement of the Replan sparked several lawsuits, joining litigation already underway challenging Trump’s July announcement that he would seek to exclude undocumented immigrants from apportionment when census numbers are delivered. A three-judge panel in New York ruled against the government this month in one of the apportionment challenges, and the government has appealed to the Supreme Court.
The appeals court Wednesday found that “the evidence in the administrative record uniformly showed that no matter when field operations end — whether September 30 under the Replan or October 31 under the COVID-19 Plan — the Bureau will be unable to deliver an accurate census by December 31, 2020. The President, senior Bureau officials, senior Department of Commerce officials, the Office of Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office have all stated that delivering a census by December 31 without compromising accuracy is practically impossible, and has been for some time.”
The ruling also noted that the announcement Monday of an Oct. 5 end date “contradicts the government’s argument that the September 30 date is vitally important to the Bureau’s ability to meet its statutory reporting deadline.”
Referring to the dissenting judge’s citation of a Sept. 28 estimate suggesting that the census is 98 percent complete, the ruling noted that that number was “still below the enumeration rate required by the Bureau’s internal standards for generating an accurate census report.”
As of Wednesday night, the date the count would have ended according to the Replan, 20 states fell short of the 99 percent mark, according to the bureau’s website.
The Census Bureau also on Wednesday said it had added its fourth political appointee since June, an unprecedented number for the bureau.
Trey Mayfield, a lawyer, has been named counselor to the director. “Mr. Mayfield will assist the director in strategic decision-making and litigation coordination, reporting to the Department of Commerce Office of General Counsel,” a bureau spokesman said. The bureau did not immediately respond to questions about how long he has been working there or why the position is needed.
In June, the bureau appointed a new deputy director for policy and his senior adviser, positions that had not existed previously and that raised concern among census experts and Democratic lawmakers that the administration was trying to influence the outcome of the 2020 count.
In August, a third appointee, a statistician with conservative ties, was installed as the bureau’s deputy director for data.
Terri Ann Lowenthal, a former staff director of the House census oversight subcommittee, called the latest appointment “disheartening.”
“That an unprecedented rash of political appointments comes in the middle of a census undoubtedly is undermining both morale and the ability of experienced staff to carry out the best census they can in the face of massive disruption to the process,” she said. “Sadly, I think this is more evidence of the administration’s disregard for scientific activities. . . . Implementation of this incredibly complex undertaking must be strictly apolitical and guided by qualified scientific experts, not political appointees.”