Judge orders census to continue through October

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Judge Lucy Koh wrote in no uncertain terms early Friday about the announcement by Commerce Secretary Wilbur Ross this week that counting would end on October 5, more than three weeks earlier than the Census Bureau’s own plan to conclude counting on October 31, which she reinstated.

Ross’ directive was an “egregious violation” of her order, and she faulted the administration with “chaotic, dilatory, and incomplete compliance with the Injunction Order.”

The Trump administration is in the process of appealing her preliminary injunction reinstating the October 31 date. But the appeals court has denied the government request to put the lower court ruling temporarily on hold while it considers the appeal.

Koh also directed the Census Bureau to send a text message to all of its employees on Friday “stating that the October 5, 2020 ‘target date’ is not operative, and stating that data collection operations will continue through October 31, 2020.” She cited contradictory messages from some supervisors of field employees as the reason for the wide message.

The National Urban League and other groups that filed the lawsuit against the Trump administration has asked Koh to also more closely supervise the census operation.

“There can be no question that Defendants violated the Court’s orders several times over,” attorneys for the league and other groups suing the government wrote in a Wednesday filing.

Koh denied that request.

But Koh herself considered taking more dramatic action against the government, such as a contempt finding against Ross and the department. She has scheduled a court conference for Friday to discuss the next steps in the case.

Government attorneys claimed the count has been more productive than originally expected and that they could reach nationwide completion on October 5. But the government’s own internal documents made public through the lawsuit revealed that as many as ten states could be undercounted if the census concludes that day.

The government also said planning to finish on October 5 is helpful in case an appeals court overturns Koh’s decision.

“The notion that we are going to be placed in contempt for contingency planning in the event that deadline comes back into effect — which could happen any day given the appeal to the Ninth Circuit — it’s just not a contempt situation,” said August Flentje, the special counsel to the assistant attorney general at the Justice Department. “To call this a contempt situation is just not reasonable.”

But an appeals court on Wednesday undercut Flentje’s argument by denying the Trump administration’s request to immediately block Koh’s order. That put the government’s claim of contingency planning on even shakier ground.

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