Ninth Circuit Rules Census Count to Continue through October 31

In National Urban League v. Ross the Ninth Circuit allowed a lower court ruling to stay in effect requiring the census count to continue through October 31. But it blocked the portion of the lower court ruling that the federal government may not attempt to meet the December 31 statutory deadline for completing the count by states. So, despite previous statements to the contrary, the count will continue through the end of October.

The Ninth Circuit outlined four steps in the census:  self-response, non-response follow-up, data processing, and the Secretary of Commerce issuing two reports on census data as required by statute, including total state population. This report is due nine months after the census date of April 1 (so December 31).

The Census Bureau lost 47 dates of field operations due to COVID-19 between March and May. In April it announced it would extend field operations until October 31. In August it changed the ending date of field operations to September 30. Numerous advocacy groups and local governments sued to prevent that change in date from going into effect.

The Ninth Circuit agreed with the district court that the decision to end field operations early likely violated the Administrative Procedures Act (APA) because the Bureau failed to provide any response, much less a “satisfactory explanation to numerous statements by Bureau officials that accelerating the schedule [to complete field work by September 30] would jeopardize the accuracy of the census.”  

The Ninth Circuit also reasoned that the Bureau’s decision likely violated the APA because it failed to consider the extensive reliance interests of census partners who advertise about the census and citizens who were told they had until October 31 to complete the census.

According to the Ninth Circuit, the federal government didn’t deny its failure to meet APA requirements. Instead, it argued moving the deadline up a month was necessary to meet the reporting deadline of December 31. The Ninth Circuit responded: “But the worthy aspiration to meet that deadline does not excuse the failure to address at all other relevant considerations, such as accuracy and reliance.”

The Ninth Circuit also concluded the district court should not have required the federal government to ignore the December 31 statutory timeline for completing the state tabulation. “[E]ven if—as both parties aver—data processing cannot be completed by December 31 as a practical matter, that does not mean that missing the putative statutory deadline should be required by a court. Serious separation of powers concerns arise when a court seeks to override a congressional directive to an Executive Branch agency.”

On September 21, 2020, a federal court in Maryland heard oral argument in another case challenging the shortening of the field operation phase of the census.