Category Archives: census litigation

DOJ Will Not Prosecute Trump Officials After IG Referred Findings of False Testimony on Census

Government Executive reports. [UPDATE: this correction has been appended to the report: After publication of this story, the Justice Department and Commerce Department inspector general revealed additional information to indicate the declination to prosecute took place during the Trump administration. This story has been corrected to note this information.]

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Analysis of the federal court challenge to Illinois’s redistricting plan

Dean Vik Amar and Professor Jason Mazzone, both of the University of Illinois, have a two part series (one, two) at Justia’s “Verdict” on McConchie v. Illinois State Board of Elections, a challenge to Illinois’s redistricting plan. From the opening of the second piece:

In this—the second—installment in our series on McConchie v. Illinois State Board of Elections, in which Republican Minority Leaders in the Illinois General Assembly (in their official capacity and as registered voters) challenge in federal court the constitutionality of the apportionment of state legislative districts that the General Assembly and the Governor recently enacted, we focus on remedies. Our prior discussion flagged standing and ripeness hurdles the plaintiffs will need to overcome in order to get to the merits of their claim. And as to the merits themselves, we expressed doubts about whether the plaintiffs should and will prevail in their argument that because the Illinois legislature used a population survey rather than (traditionally) more reliable but not yet available decennial census results based on the 2020 national count, the enacted redistricting plan violates the one-person, one-vote requirement of the Fourteenth Amendment.

Yet even if the federal courts were to agree that the plaintiffs have overcome the justiciability hurdles and that they have established a violation of the Fourteenth Amendment, we are skeptical that it would be proper for the courts to grant the remedies the plaintiffs are seeking.

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“Judge dismisses push for faster U.S. Census results”

Cleveland.com:

A federal judge has dismissed Ohio Attorney General Dave Yost’s lawsuit that sought to force the U.S.

Census Bureau to provide its results by a March 31 legal deadline, six months earlier than Census officials said was possible.

Judge Thomas M. Rose cited legal precedent he said barred him from ordering someone to “jump higher, run faster, or lift more than she is physically capable.”

The court’s ruling is here.

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“A New Delay for Census Numbers Could Scramble Congressional Elections”

NYT:

The delivery date for the 2020 census data used in redistricting, delayed first by the coronavirus pandemic and then by the Trump administration’s interference, now is so late that it threatens to scramble the 2022 elections, including races for Congress.

The Census Bureau has concluded that it cannot release the population figures needed for drawing new districts for state legislatures and the House of Representatives until late September, bureau officials and others said in recent interviews. That is several months beyond the usual April 1 deadline, and almost two months beyond the July 30 deadline that the agency announced last month. The bureau did not respond to a request for comment but is expected to announce the delay on Friday.

The holdup, which is already cause for consternation in some states, could influence the future of key districts. And with Democrats holding a slim 10-seat House majority, it even has the potential to change the balance of power in the House and some state legislatures, according to Michael Li, the senior counsel at the Brennan Center for Justice at New York University School of Law. States need the figures this year to redraw district lines for the 435 seats in the House of Representatives and for thousands of seats in state legislatures.

The delay means there will be less time for the public hearings and outside comment required in many states, and less time once maps are drawn to contest new district lines in court, as often happens after redistricting.

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“Census Numbers For Dividing Up House Seats Delayed Until April 30, Bureau Says”

NPR reports:

Disrupted by the coronavirus pandemic and last-minute changes by the Trump administration, the U.S. Census Bureau announced Wednesday that the release of the first results of the 2020 census will likely be delayed by four months.

The latest state population counts used to determine each state’s share of votes in the House of Representatives and the Electoral College for the next decade are now expected by April 30.

Those numbers were legally due by the end of last year. But the bureau missed that deadline last month for the first time since it was put in place in 1976. Career civil servants postponed releasing the counts in order to try to fix irregularities they began uncovering in census records shortly after Trump officials ended counting early in October

The release date for the congressional apportionment counts has been in flux for weeks. As part of a National Urban League-led lawsuit over the Trump administration’s census schedule changes, Justice Department attorneys previously told a federal judge that the bureau was working towards finishing the processing of census records by March 6.

But that timeline was “not taking into account what we expect to find when we do data processing, which is anomalies that need to be corrected,” Styles said. “We have found anomalies, we will likely find more anomalies, and we will fix additional anomalies as we find them.”

The timing for the second set of new census results — the detailed demographic data that state redistricting officials need to redraw voting districts — remains unclear. That information is normally delivered to the states by the end of March.

“You should not expect it prior to July 30,” Styles said.

The delay ratchets up the pressure for states that are facing their own series of legal deadlines for the redistricting process in order to hold elections this year or next.

Politico: Redistricting Delay Freezes House Races

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“Biden Ends Trump Census Policy, Ensuring All Persons Living In U.S. Are Counted”

Hansi Lo Wang for NPR:

One of President Biden’s first executive actions has reversed former President Donald Trump’s unprecedented policy of altering a key census count by excluding unauthorized immigrants. The change ensures that the U.S. continues to follow more than two centuries of precedent in determining representation in Congress and the Electoral College.

Hours after he was sworn in as president on Wednesday, Biden signed an executive order that calls for all U.S. residents, in the country legally or not, to be counted in state population numbers that, according to the 14th Amendment, must include the “whole number of persons in each state.”

The state counts are used once a decade to reallocate each state’s share of electoral votes and the 435 seats in the House of Representatives. Since the first national head count in 1790, those numbers have never omitted any residents because of immigration status.

Biden’s order also rescinds an executive order Trump issued in July 2019 as part of a project at the Census Bureau to produce citizenship data using government records as an alternative to Trump’s failed push to add a citizenship question to the 2020 census forms. Trump’s order directed federal agencies to share their records with the bureau, which has been compiling information from agencies including the Department of Homeland Security and the Social Security Administration, as well as some states’ driver’s license information.

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“Trump’s Census Director To Quit After Trying To Rush Out ‘Indefensible’ Report”

Hansi Lo Wang for NPR:

The Trump-appointed director of the U.S. Census Bureau is stepping down close to a week after whistleblower complaints about his role in attempting to rush out an incomplete data report about noncitizens became public.

In an internal email announcement on Monday, Steven Dillingham said he is retiring from the bureau on Wednesday, more than 11 months before his term expires at the end of this year, according to a Census Bureau employee who spoke to NPR and asked not to be named for fear of retaliation at work.

The bureau’s public information office has not responded to NPR’s request for comment about Dillingham’s plans, which were first reported by Talking Points Memo.

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“Census numbers won’t be released before change in power”

AP:

Government attorneys and municipalities fighting over the 2020 census asked a judge Friday to put their court case on hold, as Department of Justice attorneys confirmed the Census Bureau for now will not release numbers that could be used to exclude people in the U.S. illegally from the process of divvying up congressional seats.

Department of Justice attorneys and attorneys for a coalition of municipalities and advocacy groups that had sued President Donald Trump’s administration over the 2020 census asked U.S. District Judge Lucy Koh to suspend their court case for 21 days so the administration of President-elect Joe Biden can take power and decide how to proceed.

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“Census Bureau Stops Work On Trump’s Request For Unauthorized Immigrant Count”

Hansi Lo Wang for NPR:

The U.S. Census Bureau has halted all work on President Trump’s directive to produce a state-by-state count of unauthorized immigrants that would have been used to alter a key set of census numbers, NPR has learned.

Senior career officials at the bureau instructed the internal team assigned to carry out Trump’s presidential memo to stand down and cease their work immediately on Tuesday night, according to a bureau employee who spoke to NPR on the condition of anonymity out of fear of retaliation in the workplace for speaking out.

The move by civil servants effectively ends the bureau’s participation in Trump’s bid to make an unprecedented change to who is counted in the 2020 census numbers that will be used to reallocate each state’s share of congressional seats and Electoral College votes for the next decade. According to the 14th Amendment, those counts must include the “whole number of persons in each state.”

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Trump’s Apportionment Gambit for Census to Exclude Some Non-Citizens From Count Appears Dead as Numbers Won’t Be Ready Before Trump Leaves Office

Politico:

A Justice Department attorney said Monday that the census population count used to apportion House seats for the next decade may not be ready until February, which would thwart President Donald Trump’s plans to exclude certain immigrant populations from the total.

John Coghlan, a deputy assistant attorney general who is representing the government in the case, said that as of late December, the Census Bureau did not expect to be able to release apportionment data until Feb. 9, well after President-elect Joe Biden is inaugurated.

The Justice Department also said that date could be pushed back further yet because of potential new anomalies discovered within the data.

A delivery date after noon on Jan. 20, once Biden is sworn in, would effectively end Trump’s attempts to exclude undocumented immigrants from the total. Biden has said he opposed the plan, and historically those people have been included in the count.

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“Census Bureau to miss deadline, jeopardizing Trump plan”

AP:

The Census Bureau will miss a year-end deadline for handing in numbers used for divvying up congressional seats, a delay that could undermine President Donald Trump’s efforts to exclude people in the country illegally from the count if the figures aren’t submitted before President-elect Joe Biden takes office.

The Census Bureau plans to deliver a population count of each state in early 2021, as close to the missed deadline as possible, the statistical agency said in a statement late Wednesday.

“As issues that could affect the accuracy of the data are detected, they are corrected,” the statement said. “The schedule for reporting this data is not static. Projected dates are fluid.”

It will be the first time that the Dec. 31 target date is missed since the deadline was implemented more than four decades ago by Congress.

Internal documents obtained earlier this month by the House Committee on Oversight and Reform show that Census Bureau officials don’t expect the apportionment numbers to be ready until days after Biden is inaugurated on Jan. 20.

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“New Population Estimates Point to Significant Issues in Recent Supreme Court Case”

Election Data Services analysis:

New Census Bureau population estimates for 2020 released today shows a subtle but significant change in the upcoming apportionment process, that is front and center in the Supreme Court’s decision last week in New York v. Trump. The population impacts whether the state of New York loses either one or two congressional districts and whether that seat goes to Alabama if the current estimate numbers were used for apportionment in 2020. These numbers are only estimates and reflect a normal Census Bureau practice of generating population estimates each year from reviewing birth, death and immigration records. These ARE NOT reflecting results from the actual 2020 Census collection efforts from this year, as those numbers are not expected out until sometime in January 2021.

Today’s population estimates reflect numbers as of July 1, 2020, after the official date of April 1, 2020 that is commonly used for Census Day. In all other years of this decade, Election Data Services has aged (added to) the population estimates released yearly by the Census Bureau an additional nine months to bring them in line with Census Day. Because today’s population estimates are pegged to a date after Census Day, for this year’s study we have subtracted a quarter of the year’s growth to move the estimates back to April 1, 2020. While this was done for consistence with previous studies this decade, the Covid pandemic has caused changes in Census practices for the actual counting process in 2020, most importantly in drawing out the timetable for survey collection. As a result, we are releasing apportionment estimates for both April 1, 2020 and July 1, 2020.


That subtle three month change in population estimates will determine whether Alabama loses a Congressional District, as the back-dated April 2020 data shows the loss by only 5,170 people (that seat would have been #436 in the apportionment process, one away from the 435 cut-off point.) The state of Alabama is currently involved in a court case called State of Alabama v. US Department of Commerce where the state has made the claim that their loss of a congressional district is due to the inclusion of illegal aliens in the census count. But Alabama’s loss would change to no-change in their number of Congressional Districts if the new Census estimates for July 1 were instead used for apportionment. Alabama would keep their 7th seat (seat #435) by only 6,120 people to spare without regard to whether illegal aliens were counted in the census or not.

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