Judge Blocks Administration’s Decision to End Census Count Early

By Brian Skinner, Esq.

Last week U.S. District Judge Lucy Koh of the Northern District of California granted a request for a temporary restraining order stopping the Trump administration from winding down census operations until a court hearing later this month. Plaintiffs sued the administration over its decision last month to end the count a month earlier than it had planned. 

Last week the government revealed that the Census Bureau has already begun taking steps to end the count, prompting the plaintiffs who include civil rights groups and local jurisdictions, to ask for the restraining order. The order is set to last until Sept. 17, when the court will hear the plaintiffs’ request for counting to continue until Oct. 31, the date the Census Bureau set months ago in response to coronavirus-related delays.

The ruling blocks the government from implementing plans laid out in a leaked Aug. 3 internal document outlining steps the bureau could take to speed up its operations.

In her ruling, Judge Koh said the sole evidence the government submitted in opposition to the request for the restraining order was the Sept. 5 declaration of Albert E. Fontenot Jr., the bureau’s associate director for decennial census programs. That statement appeared to bolster the arguments of the plaintiffs that a temporary restraining order was necessary.

Fontenot’s declaration said the bureau had already begun terminating some employees, stating “It is difficult to bring back field staff once we have terminated their employment. Were the Court to enjoin us tomorrow we would be able to keep more staff on board than were the Court to enjoin us on Sept. 29, at which point we will have terminated many more employees.” The judge found that Fontenot’s declaration “underscores Plaintiffs’ claims of irreparable harm.”

Census data is important since it is used to determine congressional apportionments, federal funding and redistricting. An early end to the count may have far reaching implications for West Virginia. An analysis of West Virginia’s census-directed programs found that in fiscal year 2016, the state received $6.8 billion in funding based on census results, including —

• $472 million for highway planning and construction.
• $499 million for the Supplemental Nutrition Assistance Program (SNAP).
• $78 million in special education grants.
• $77 million for school lunches.
• $29 million for the Low-Income Home Energy Assistance Program.
• $8.4 million in grants to prevent and treat substance abuse.

The COVID-19 pandemic has resulted in myriad of problems for this year’s count, including a delayed timeline and a higher than usual attrition rate among temporary employees hired to complete the count and track down households that don’t self-respond to the survey, including many minorities, immigrants and other ­hard-to-count groups.

Although West Virginia currently ranks second in the nation with a total enumeration rate of 97.3%, it ranks 50th in self-response with a rate of 55.8%.The national self-response rate is 65.5%. Total enumeration includes responses collected on the Internet, by phone, by mail, and in person based on Annual Estimates of the Resident Population for Counties (2019) and Places (2018). Population Estimates, Population Division, U.S. Census Bureau.

The plaintiffs in this case and those in other census-related cases have accused the administration of seeking to rush and manipulate the census count to give an advantage to Republicans in representation and funding. Census experts have also warned that rushing the collection and processing of the data will result in an inaccurate count.

Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.