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Federal judge says she's nearing decision on timeline for concluding census count

Posted September 23, 2020 2:32 p.m. EDT

— A federal judge said she'll rule Wednesday or Thursday about whether the 2020 census ends in just one week or whether counting can continue through October.

Judge Lucy Koh, who sits in California, laid out that timeline after the Trump administration indicated it planned to file an appeal on Wednesday challenging her temporary restraining order, which is currently preventing the Census Bureau from winding down operations. The temporary order expires on Thursday.

The National Urban League and other group suing the government have asked for a preliminary injunction blocking the government from concluding the count on September 30.

At a late Tuesday hearing, Koh signaled concern with the abrupt decision in August by Commerce Secretary Wilbur Ross to move up the end date from October 31. She pointed out that it is unlikely the Census Bureau will reach its own 99% standard for completion by the end of September.

"Four out of 50 states reached the threshold for closing," she said, referencing the Census Bureau's latest data. "Why is the bureau insisting on ending data collection in seven days? ... That means 46 states have not met the requirements yet."

Alexander Sverdlov, an attorney representing the government, argued that delays in the case are hurting the Census Bureau's ability to wind down counting and move to the number-crunching phase, which takes several months. He said the government is trying to meet a December 31 deadline to produce a final set of figures.

But Koh has explored the possibility of ruling the December 31 deadline unconstitutional. She also pointed out that Sverdlov and his colleagues violated two of her orders to produce documents, and even denied the existence of documents that it later turned over to the court.

When Sverdlov objected to her characterization of the government's violations, Koh challenged him: "Go ahead and appeal me. I'm saying, do what you need to do. That's fine."

Internal documents released in the lawsuit and reviewed by CNN showed intense concern among career Census Bureau officials when they first got wind in late July that Ross might move up the deadline.

"It is ludicrous to think we can complete 100% of the nation's data collection earlier than 10/31 and any thinking person who would believe we can deliver apportionment by 12/31 has either a mental deficiency or a political motivation," wrote Tim Olson, who oversees the massive operation that sends employees door-to-door at households that have not responded to the survey.

His colleagues warned in a memo that ending the count early risked producing a tally of "unacceptable quality" with "fatal flaws" that carries the stain of "politically-manipulated results."

The government has argued, meanwhile, that the Constitution's requirement to conduct a count of the US population every 10 years does not specify whether or how it should be accurate.

At Tuesday's hearing, Melissa Sherry, the attorney for the National Urban League and other groups, said the timing for Ross' decision coincides with President Donald Trump's direction to exclude undocumented immigrants from the count used to divide seats in Congress between the states. She argued that was another way the administration attempted to interfere with the count and make it less accurate.

"The timing does get suspicious to say the least when the bureau, the secretary, the president are all moving forward to say of course we need this timeline," Sherry said. "We're going to Congress to get the extension. Then all of a sudden, they're not asking for an extension anymore."

Sverdlov, the government attorney, said that line of argument is "far outside the scope of this case" and said the judge does not have the authority to review Ross' decision or the Census Bureau's plans.

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