Census Bureau apparently pushing ahead with early deadline despite court order, judge says

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U.S. District Judge Lucy Koh of San Jose, California, said Tuesday the Trump administration appears to be pushing ahead with an early census tabulation deadline in violation of her court order.

Koh spoke at a Zoom hearing a day after the U.S. Census Bureau tweeted that Oct. 5 is the target date for people to self-report to the census and for census workers to stop knocking on doors of those who haven’t responded, report the Recorder, Law360, the Associated Press and NPR.

Koh said that deadline appears to put the Census Bureau on an abbreviated schedule that violates her Sept. 24 preliminary injunction, which banned shortened deadlines of Sept. 30 for completion of data collection and Dec. 31 for reporting the population tabulation to the president. The old, lengthier deadline for ending field operations was Oct. 31.

Internal emails released by the government show that U.S. Commerce Secretary Wilbur Ross chose the Oct. 5 date after being given two options, according to NPR.

Ross could end field operations Oct. 5 to meet the second Dec. 31 deadline for a tabulation. Or Ross could allow workers to stay in the field past Oct. 5 to further “the goal of a complete and accurate 2020 census.”

During the hearing Tuesday, Department of Justice lawyers said it is wrong to characterize the Oct. 5 deadline tweet as a decision by the commerce secretary, according to the Recorder.

“It’s a fluid situation and even to call it a decision is to endow it with significance that it otherwise does not have,” said Alexander Sverdlov of the DOJ. “This instruction as we indicated is merely an adjustment to a schedule. It is not a formal decision.”

Koh responded that the Oct. 5 deadline schedule appears to be based on an enjoined date.

“This whole Oct. 5 schedule adjustment, banana, whatever you want to call it, is trying to implement an enjoined date,” she said. “I think what we should do is a contempt proceeding or motion.”

A lawyer for the plaintiffs, Melissa Arbus Sherry of Latham & Watkins in Washington, D.C., said she would probably file a motion to compel or a motion for contempt.

Koh advised Sherry: “You don’t have to call it contempt, just as we’re not calling what Secretary Ross did a decision. But I think it’s inconsistent with what I ordered last Wednesday,” Koh said.

A whistleblower census-taker told Koh in an email that the Census Bureau was disregarding her order, according to Law360. The census-taker, James Greer, emailed screenshots of a group chat in which his supervisor told employees to ignore the court order and abide by the Sept. 30 deadline.

In response, a Census Bureau official filed a declaration that the supervisor had sent the chat message before receiving guidance from the agency.

Greer told Law360, however, that the supervisor still confirmed the Sept. 30 deadline, despite the guidance on procedure.

Other census workers have also emailed the court to raise concerns about an undercount.

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