Government seeks emergency ruling allowing it to end census count early

Another dispute involving the 2020 census has reached the Supreme Court, and this time the justices will decide on an emergency basis whether the Trump administration can end the head-count portion of the census early.

The administration says it needs to stop counting people immediately – and move to the complex phase of processing the data collected in the field – in order to comply with a key statutory deadline at the end of the year. But lower courts have ordered the Department of Commerce, which conducts the census, to continue counting through Oct. 31. The administration filed an emergency request Wednesday night asking the Supreme Court to put those orders on hold.

The administration’s ability to complete the data processing by the end of the year may affect whether it can implement a controversial plan to exclude people living in the country illegally from the population counts that are used to reapportion seats in the House of Representatives. The legality of that plan is the subject of a separate case currently pending before the Supreme Court.

The case that came to the justices on Wednesday will determine when the census will wind down its field operations – the process of collecting the data needed to count each person living in the United States. Earlier this year, the Department of Commerce temporarily suspended field operations in response to the coronavirus pandemic, causing the counting process to fall behind schedule. That’s a potential problem because the department faces a statutory deadline of Dec. 31 to send state-by-state population totals to the president. Those population totals are then used to reapportion congressional seats among the states.

On Aug. 3, the department announced that it would deviate from a prior schedule and end field operations on Sept. 30, a month earlier than had been previously planned. Ending field operations early, the department said, would be necessary to allow sufficient time for the department to complete the extensive data-crunching and error-correction – a phase known as “post processing” – and provide accurate tabulations by the Dec. 31 deadline.

A group of nonprofit organizations and local governments went to federal court in California, arguing that the department’s new schedule would end field operations prematurely and result in an inaccurate census. They said the schedule change violates the Constitution’s enumeration clause, which requires a count of the population every 10 years, and the federal laws governing administrative agencies.

U.S. District Judge Lucy Koh agreed with the challengers. In late September, Koh ordered the department to continue field operations through Oct. 31 – and, because doing so would delay the data-processing phase, she also ordered the department to disregard the Dec. 31 deadline for delivering state population counts to the president.

The department quickly appealed to the U.S. Court of Appeals for the 9th Circuit. On Wednesday, the appeals court issued a preliminary ruling that revoked the portion of Koh’s order that told the department to disregard the Dec. 31 deadline. But the appeals court kept in place the portion of the judge’s order requiring field operations to continue through Oct. 31.

Within hours of the appeals court’s ruling, the Trump administration sought emergency relief at the Supreme Court. There is “virtually no prospect” that the two-month window from Oct. 31 to Dec. 31 will allow enough time for the Census Bureau to complete data processing and meet the statutory deadline, Acting Solicitor General Jeffrey Wall wrote in the government’s request. Calling Koh’s order “an unprecedented intrusion into the Executive’s ability to conduct the census,” Wall asked the justices to quickly put that order on hold and allow the department to end field operations and shift to the data-processing phase right away.

Time is of the essence, Wall continued. “Every passing day exacerbates the serious risk that the district court’s order to continue field operations and delay post processing will make it impossible for the Bureau to comply with the December 31 statutory reporting deadline,” he wrote.

On Thursday morning, Justice Elena Kagan (who handles emergency appeals from the geographic area that includes California) ordered the nonprofits and local governments to file a response to the administration’s emergency request by Saturday at 10 a.m. EDT.

The timing of the census’ completion looms large not merely because of the Dec. 31 statutory deadline, but also because of the administration’s plan to change how the census is used to reapportion House seats. If President Donald Trump were to lose the Nov. 3 election and the government were unable to complete census-data processing by the end of the year, it is possible that the new administration would then be in control of the population totals used for reapportionment. Trump wants to exclude people in the country illegally from those population totals – a change that could shift political power away from some populous blue states, such as California and New Jersey.

A three-judge panel in September barred the administration from excluding unauthorized immigrants from the reapportionment totals, and the administration appealed that ruling to the Supreme Court. The justices ordered expedited briefing, and the groups opposing the plan submitted briefs on Wednesday.

The two emergency census cases now on the court’s docket come 16 months after another high-profile and contentious census dispute. Last year, in Department of Commerce v. New York, the court ruled that the administration had offered pretextual and inadequate explanations when it tried to add a question about citizenship to the census. Shortly after that ruling, the department abandoned its plan to add the citizenship question.