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Supreme Court says Trump administration can shut down census count now, despite fears of an undercount

A census taker’s briefcase is seen as she knocks on the door of a residence in Winter Park, Fla., in August. (John Raoux/AP)

The Supreme Court on Tuesday allowed the Trump administration to end the 2020 Census count now, concluding a contentious legal battle over the once-­in-a-decade household count despite fears of an undercount that would fall hardest on minority groups.

The court put on hold a lower-court order that said the count should continue until the end of the month, because of delays brought on by the coronavirus pandemic. The court did not provide a reason, which is common in disposing of the kind of emergency application filed by the administration.

Justice Sonia Sotomayor was the only justice to note dissent.

“The harms caused by rushing this year’s census count are irreparable,” she wrote. “And respondents will suffer their lasting impact for at least the next 10 years.”

The census count has vast implications for American life, affecting the distribution of federal aid and the size of each state’s congressional delegation. Under President Trump, though, what has usually been a project for the nation’s bureaucrats took on a decidedly partisan tone.

The Supreme Court in 2019 rejected his plans to add a citizenship question to the census form, which experts said would discourage the count of both legal and undocumented immigrants. Chief Justice John G. Roberts Jr. wrote the 5-to-4 decision, saying the administration did not follow proper procedure for introducing the question, and that its rationale was “contrived.”

This summer, the president said he intended to break with the past and present to Congress census data that did not include undocumented immigrants. Two weeks later, Commerce Secretary Wilbur Ross said he was ending the count early — by the end of September — to meet a Dec. 31 deadline.

The U.S. Supreme Court on Oct. 13 blocked a lower-court ruling that had ordered the country's decennial population count be continued until Oct. 31. (Video: Reuters)

It is unclear how many Americans are left to be counted. The department said on its website that 99.9 percent of housing units have been accounted for, although others have questioned the figure and said some areas remain undercounted. In a statement Tuesday night, the Census Bureau said the 2020 count will end Thursday.

Sotomayor said that “even a fraction of a percent of the Nation’s 140 million households amounts to hundreds of thousands of people left uncounted. And significantly, the percentage of nonresponses is likely much higher among marginalized populations and in hard-to-count areas, such as rural and tribal lands.”

A panel of the U.S. Court of Appeals for the 9th Circuit had agreed with a district court judge that the Commerce Department could not end the count until Oct. 31. But it also said the department could still try to meet a Dec. 31 deadline for delivering the count to the White House and did not have to wait until April 30 to deliver it, as the district court judge said.

That timing is important. The White House wants to send the population totals to Congress in January.

[Perspective: Trump lied to the Supreme Court. His new census order proves it.]

If Trump is not reelected in November, a delay much beyond Dec. 31 would mean that his Democratic opponent, former vice president Joe Biden, would make decisions about the count.

Plaintiffs, including the National Urban League, several jurisdictions and other groups, contend that a shortened timeline would result in an undercount of harder-to-count populations, including immigrants, minorities and lower-income groups, depriving them of funding and representation.

Those who wanted the count continued said the decision was harmful.

“This decision will result in irreversible damage to the 2020 Census,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law. “That said, the bureau has indicated that it takes several days to shut down the enumeration process. As we explore options we’ll continue to push undercounted populations in states such as Louisiana and Mississippi to participate while the process remains active.”

If there is a “silver lining,” she said, it is that the count continued for two weeks after Ross’s planned conclusion in September.

Julie Menin, director of NYC Census 2020, said the census has “been stolen by the Trump administration, which has interfered at every step of the way, and now, the census has been cut short during a global pandemic in which New York City was the epicenter.”

Sotomayor noted that the Commerce Department itself had once said it needed until Oct. 31 to complete the count. But two weeks after “President Trump announced his intent to exclude undocumented immigrants from the population base for congressional apportionment,” Sotomayor wrote, Ross said the counting would end in September.

U.S. District Judge Lucy Koh agreed with challengers that the count should continue. After the 9th Circuit agreed, the Trump administration went to the Supreme Court.

Acting solicitor general Jeffrey B. Wall said the court should not worry that the count is incomplete, saying, “The district court disregarded the Bureau’s successful efforts to ensure that the 2020 census will reach levels of accuracy and completeness comparable to other recent censuses while still meeting the deadline.”

[Analysis: Trump gives away the game on his census citizenship gambit]

Census experts and plaintiffs have said they are concerned that some households were counted inaccurately to reach the completion-rate goals, citing enumerators and supervisors across the country who said they were told to cut corners and skip steps in the rush to bring all states to a 99 percent completion rate.

“As defendants’ own data shows, millions of Americans have now been counted only because of the district court’s injunction,” said the Urban League response to the government suit filed by lawyer Melissa Arbus Sherry. “And critical field work is ongoing, especially for those in hard-to-count populations. Any stay would allow defendants to stop the 2020 Census count, shut down field operations, fire hundreds of thousands of employees, and start processing data the very next day. There is no going back from that.”

The census appeared to be on track at the outset of 2020.

But in March, just as survey forms were appearing in people’s mailboxes, the pandemic hit, shutting down the nation and crippling plans for public events around the census, and eventually delaying the start of door-to-door enumeration by three months.

The administration in April requested approval from Congress to move the statutory deadline to deliver census data to the president for House apportionment, from Dec. 31 to April 30. The House approved the change, but the Senate did not act.

By early July, Census Bureau officials were saying the window had closed to be able to deliver an accurate count to the president by year’s end.

Then on July 21, Trump issued a memo saying undocumented immigrants would be excluded from census numbers, an action whose effect would be to reduce the number of seats in Congress for states with higher numbers of immigrants, which also would affect their strength in the electoral college for presidential elections.

Removing undocumented immigrants from the count would be unprecedented in U.S. history. But to implement such a change, Trump would need to receive the data while he was still in office.

On Aug. 3, the administration reversed course on the census schedule, saying the count would end Sept. 30 to deliver the data by the end of the year. And that sparked the ultimate round of litigation.