Census officials for much of this year insisted they could not deliver a sound enumeration on time in the middle of a pandemic, asking Congress to relax a Dec. 31 deadline to return results and conducting operations on the assumption they would get permission for their reasonable delay. Then, suddenly, administration officials reversed course, cutting 22 weeks from the schedule they had proposed and ordering all counting to cease last month so they could deliver numbers by Dec. 31, after all — the goal officials had previously said was impossible. Fortunately, District Court Judge Lucy Koh ordered them last month to keep counting.
Rather than obey and revert to their previous schedule, the Trump administration appealed and attempted to stop counting in the meantime, drawing a threat from Judge Koh to hold census officials in contempt. The U.S. Court of Appeals for the 9th Circuit backed Judge Koh, leading the administration to ask the Supreme Court for a stay.
The Constitution and federal law impose a duty on the Census Bureau to produce an accurate count. In abruptly shifting to a tight deadline that bureau officials themselves previously argued they could not meet responsibly, they disregarded that duty. As the bureau defended that decision in court, the 9th Circuit found that the agency provided no response whatsoever to the obvious concerns that their actions would produce a flawed count.
The Trump administration bases its case on the fact that Congress has not yet moved the Dec. 31 deadline. But the bureau cannot pretend it can do its job before that date, particularly after it spent so much time insisting it could not. The bureau’s original plan was the right one: proceed on the schedule it needs to produce a quality enumeration, lobbying Congress to shift the date in the meantime, and drift past the deadline if necessary, because the nation is dealing with a public health crisis. A version of this is what happened in counts from 1810 to 1840. The 9th Circuit itself just said that doing so this cycle likely would not invalidate the count.
The bureau’s reckless refusal to take this pragmatic path reflects two underlying factors. First, it is probable a flawed count that underrepresented traditionally hard-to-count groups would reduce the apparent population of Democratic areas. Second, President Trump wants to exclude undocumented immigrants from this year’s apportionment process, which determines how many congressional seats each state gets. Even if he lost the election, Mr. Trump would be able to try to do this if he got census figures back on Dec. 31.
The census should be a professional, nonpartisan head count, not another opportunity to game the system for Republican advantage. The Constitution demands no less.