But on Monday night Commerce Secretary Wilbur Ross and the Census Bureau unexpectedly announced a “target date” of Oct. 5, which bureau officials now say is the final date on which the count can end and still meet a statutory deadline of Dec. 31 to report census data to the president.
The suit, brought by the National Urban League and a group of counties, cities, advocacy groups and individuals, said a truncated schedule would irreparably harm communities that might be undercounted.
At a hearing Tuesday night, Koh said the bureau’s attempt to still try to meet the Dec. 31 deadline was a violation of her order.
“The October 5 date is doing exactly what I enjoined the defendants from doing,” she said, adding that she thought “the way we should proceed is with a contempt proceeding.”
A contempt charge would need to be requested by plaintiffs, and Koh asked them to file a motion by 11 a.m. Pacific time Wednesday.
Justice Department attorneys voiced strong objections to the idea that the administration was in contempt. “That is going very far,” said August Flentje, special counsel to the assistant attorney general. “That is not a normal way of doing things.”
When Koh asked for details of when and how the decision was made to end the count on Oct. 5, Justice Department attorney Aleks Sverdlov said, “To call it a decision is to endow it with a significance it does not have,” adding that it was simply a “schedule adjustment.”
“Whatever you want to call it, you can call it a pickle,” a visibly irritated Koh said.
Flentje said the bureau had set the target date to encourage enumerators not to slow down, and to make it possible to still meet a Dec. 31 statutory deadline in case a higher court reverses Koh’s ruling. The government has said it will appeal Koh’s order to the U.S. Court of Appeals for the 9th Circuit.
Flentje said the bureau has counted more than 98 percent of households. But several states, including many with high minority populations, are still around the 94 or 95 percent mark.
Both the court and the plaintiffs’ attorneys have said they have heard from enumerators in recent days who said they are being rushed to finish the count.
In a statement filed late Tuesday, the plaintiffs’ attorneys argued that the legal effect of Koh’s injunction against the earlier deadlines was to “reinstate the rule previously in force,” meaning finishing the count by Oct. 31 and reporting the data by April 30.
“Yesterday’s announcement of an October 5 ‘target date’ to end self-response and field operations is only the latest in [a] string of violations,” the statement said. “The Court’s stay and preliminary injunction was intended to remedy the multiple [Administrative Procedure Act] violations found — which were all focused on the Replan’s accelerated timelines. To the extent Defendants (wrongly) believed that they had free rein to end data collection any time they wanted, so long as it wasn’t on September 30, they should have asked this Court for clarification.”
The judge gave the government until Thursday night to respond to the plaintiffs’ motion and set a new hearing date for Friday.
Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which is arguing the case, called the hearing unusual.
“She invited a motion for contempt,” she said. “It’s pretty extraordinary when a court is saying, ‘My door is open.’ It’s a signal of how egregious she thinks their conduct is.”