Census count can be cut short, Supreme court rules

By Adam Liptak and Michael Wines

The Supreme Court on Tuesday allowed the Trump administration to halt the 2020 census count ahead of schedule, effectively shutting down what has been the most contentious and litigated census in memory and setting the stage for a bitter fight over how to use its numbers for the apportionment of the next Congress.

The brief unsigned order formally only pauses the population count while the administration and a host of groups advocating a more accurate census battle in a federal appeals court over whether the count could be stopped early.

As a practical matter, however, it almost certainly ensures an early end because the census — one of the largest government activities, involving hundreds of thousands of workers — cannot be easily restarted and little time remains before its current deadline at the end of this month. In fact, some census workers say, the bureau had already begun shutting down some parts of its count despite a court order to continue it.

The census has been buffeted both by the coronavirus pandemic and the involvement of the Trump administration in what has traditionally been a rigorously nonpartisan, data-driven exercise. Its early end could mean that White House officials, rather than Census Bureau experts, may use the population numbers to determine representation in the House of Representatives and in state and local governments.

President Donald Trump has insisted those numbers should not include undocumented immigrants living in the United States. That conflicts with the mandate of the Constitution that the census count all residents of the country and would almost certainly give more representation to Republicans.

The court’s order gave no reasons, which is typical when the court acts on emergency applications. It said the count could stop while appeals moved forward.

Justice Sonia Sotomayor dissented, saying that “the harms associated with an inaccurate census are avoidable and intolerable.”

The order was a major victory for the Trump administration, which had been rebuffed by both district and appeals courts in its effort to end the count early. It was a bitter defeat for state and local governments and advocacy groups that had sued to keep the population count going despite the administration’s determination to shut it down.

“The court’s action will cause irreversible damage to efforts to achieve a fair and accurate census,” said Kristen Clarke, the president of the Lawyers’ Committee for Civil Rights Under Law, which represents many of the parties that sued. “It’s incredibly disappointing.”

Terri Ann Lowenthal, a longtime census expert and consultant to several groups pressing for an accurate tally, charged that the disarray caused by the administration’s handling of the count “inevitably will undermine whatever public confidence remains in the census results.”

The administration “could do the right thing and allow those operations to wind down in an organized way over the next two weeks, or it could continue to push for rushed results, accuracy and quality be damned,” she said. “The commerce secretary’s next steps will tell us everything we need to know.”

Cary Coglianese, a University of Pennsylvania professor who is one of the country’s top experts on administrative law, said the ruling was in some ways unsurprising. “Whatever one makes of the policy impacts underlying the Trump administration’s position on the timetable for finishing the census,” he said, “today’s ruling does generally fit with the court’s long-standing deferential posture” toward actions by federal agencies.

The justices’ decision is but the latest turnabout in a saga that has seen the deadline for completing the population count — originally set for August, after a decade of preparation — shifted to Oct. 31, then abruptly changed to Sept. 30, then restored by courts to Oct. 31.

The legal battle has focused on whether the Commerce Department, which oversees the Census Bureau, had followed federal law when it set the Sept. 30 deadline. But the subtext has always been whether a curtailed count would be accurate enough to set the baseline for allotting political power and trillions of dollars over the next decade — and whether Trump was seeking to take control of the count for political advantage.

Most experts said a shortened census would only worsen existing undercounts of the people who have always been hardest for census workers to reach — minorities who are suspicious of the government, and the poor and young people, who move frequently and are more difficult to track down.

Because those groups live predominantly in urban areas, an undercount also would be likely to dilute the political power of Democrats who disproportionately represent those areas. For the same reason, Trump’s plan to exclude unauthorized immigrants from population totals used to allot political power would probably further dilute Democratic representation in many — although hardly all — areas with large immigrant populations.

The deadline for completing the count was originally moved from August to Oct. 31 after the pandemic all but shuttered many census operations last spring. Because of that delay, the Census Bureau said it would move the dates for delivering population figures used by the House and states for reapportionment and redistricting to next April and beyond.

But in August, Commerce Secretary Wilbur Ross ordered the Oct. 31 deadline moved up a month to Sept. 30, saying the extra time was needed to deliver preliminary population totals to Trump by the statutory deadline of Dec. 31.

Ross’ action came over the objection of career census experts who argued that it would undermine, perhaps fatally, the accuracy of the count. It forced the bureau to abandon on short notice some of the counting safeguards it was using to make the tally reliable. And it quickly triggered a lawsuit seeking to keep the tally going.

The move came not long after the announcement in July that the administration would seek to exclude undocumented immigrants from the population totals it would send to Congress for reapportioning seats in the House.

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