Jan Meisels Allen
The U.S. Supreme Court approved a request from the Trump Administration to suspend the lower federal court’s order that extended the census count to October 31.The Court offered no explanation for the decision, which required the support of at least five justices. Justice Sonia Sotomayor issued a written dissent. She called the harms from ending the count early “avoidable and intolerable.” Further she said, “even a fraction of a percent of the Nation’s 140 million households amounts to hundreds of thousands of people left uncounted,” she wrote. “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.”
The ruling was a result from the Justice Department’s emergency request made last week. Previously, 9th Circuit Federal Appellate Court Judge Lucy Koh, said the count was to continue through October 31. The extension was made due to COVID-19 and the October 31 date had been proposed by the Administration last April which they then changed their mind in July.
As the previous Judges have ruled, the October 31 date would give the bureau a better chance of getting an accurate and complete count of the country's residents, which is used to determine how political representation and federal funding are distributed among the states over the next decade. The numbers, in turn, also determine how many Electoral College votes each state has to determine who becomes the U.S. president in 2024 and 2028. The count also determines how approximately $1.5 trillion in federal spending is directed. The proposed deadlines would have pushed field collection until the end of October, with each state's congressional districts being submitted to the president by April 30, 2021, instead of the year-end statutory deadline.
Justice Department attorneys say the Census Bureau is under pressure to meet a legal deadline of Dec. 31 for reporting to the president the first set of census results — the latest state population counts that determine each state's share of the 435 seats in the House of Representatives.
Experts, both inside and outside the agency, have expressed concern over a shortened timeframe for the constitutionally mandated count, arguing that a politically motivated, shortened timeline due to the pandemic threatened the census on two ends: both the actual enumeration and the data processing that follows. A report from Commerce Department's Office of Inspector General in September found that the decision to accelerate the census schedule “was not made by the Census Bureau” and that it “increases the risks to obtaining a complete and accurate 2020 Census.”
The Census Bureau is under the Secretary of Commerce Wilbur Ross. If the Secretary of Commerce were to present the new state counts to the White House by Dec. 31, that would ensure that even if President Trump did not win reelection, he could attempt to carry out the unprecedented change he wants to make to who is counted when determining the reallocation of House seats.
A different legal fight before the Supreme Court which they have not said when they will hear, is the requirement of "whole number of persons in each state" and the president's limited authority over the census. President Trump wants to exclude unauthorized immigrants from being counted.
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Jan Meisels Allen
Chairperson, IAJGS Public Records Access Monitoring Committee