Latham Leads Challenge To Rushed Census Plan
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Law360 (August 18, 2020, 10:59 PM EDT) — Latham & Watkins LLPis leading the charge in a lawsuit brought by a group of civil rights organizations and municipalities in California, Texas and Washington claiming that the Trump administration’s decision to drastically cut the time to collect census data amid the coronavirus pandemic is unconstitutional.
The administration is sacrificing the accuracy of the 2020 census by forcing the U.S. Census Bureauto compress 8½ months of vital data collection and processing into just 4½ months, against the judgment of the bureau’s own staff, according to the complaint filed Tuesday in California federal court by Latham, the Lawyer’s Committee for Civil Rights Under Law and the Brennan Center for Justice.
“The federal government’s attempt to rush the census count poses a grave threat to all the vital functions that rely on census data,” the suit says. “Undercounted cities, counties, and municipalities will lose representation in Congress and tens of millions of dollars in funding. And communities of color will lose core political power and vital services.”
The complaint was filed on behalf of the National Urban League; the League of Women Voters; the Black Alliance for Just Immigration; Los Angeles, San Jose and Salinas, California; Harris County, Texas and Commissioners Rodney Ellis and Adrian Garcia; and King County, Washington. It names the U.S. Department of Commerce, Secretary of Commerce Wilbur L. Ross Jr., the Census Bureau and its Director Steven Dillingham as defendants.
In April, as the coronavirus pandemic spread across the country, the Census Bureau revised its operational plan for the 2020 census to account for both the difficulties of census-taking during a pandemic and the bureau’s constitutional and statutory obligation to take a fair and accurate count, the complaint says. Under the COVID-19 Plan, the bureau and the Commerce Department decided to delay the counting process, shift the time frame for conducting and completing the data collection operation, and increase the time for gathering data, according to the suit.
But on Aug. 3, the agencies suddenly reversed course and implemented a Rush Plan to complete 8½ months of work in half the time, the suit says. The new plan ignores the monthslong delay in census data collection caused by the pandemic and compels a final date for delivering the data that bureau officials have repeatedly said they can’t meet, according to the suit.
“It threatens a massive undercount of the country’s communities of color and the municipalities, cities, counties, and states where they live,” the suit says. “Under these circumstances, the Bureau’s new plan to rush the 2020 Census violates … the federal government’s legal obligations to secure an accurate count and statutory prohibitions on arbitrary, capricious and pretextual federal government action.”
The plaintiffs say the “impossibly-shortened” Rush Plan should be set aside and the Census Bureau should be allowed to implement its original pandemic contingency plan. The COVID-19 Plan was intended to make sure that hard-to-count communities would be enumerated and that the health and safety of bureau employees and the public would be protected, the suit says. The plan adjusted deadlines but didn’t shorten the time for critical operations, according to the suit.
The Trump administration hasn’t provided a reason for the abrupt change to the Rush Plan, and the Census Bureau has refused requests from Congress and at least one of the plaintiffs to provide one, according to the complaint.
The plaintiffs say the announcement of the change did reference a couple of developments that occurred between the two plans, but they still don’t justify the rush. And the timing suggests the rush is just a way to suppress the political power of communities of color by excluding undocumented people from the census count, according to the complaint.
The plaintiffs note that on July 21, President Donald Trump issued a memoordering the Commerce Department to gather data about whether census respondents are legally living in the country and exclude undocumented immigrants from the apportionment base.
“To increase the chance that the president can fully effectuate the apportionment exclusion order, he must receive the population totals while he is still in office, and he ordered the Secretary of Commerce to provide him with 2020 decennial census information by December 31, 2020 to carry out his objective,” the suit says.
The suit claims violations of the Constitution’s enumeration clause and the Administrative Procedure Act. The plaintiffs seek to vacate the Rush Plan and reinstate the COVID-19 Plan, as well as litigation costs and attorney fees.
Marc H. Morial, president and CEO of the National Urban League, said in a statement Tuesday that the suit was filed to stop the American people from being cheated out of a fair and accurate census.
“The Trump administration has openly worked to drive down minority participation in the census to give less representation to more diverse states, and now is rushing the deadline so that the data can be manipulated to exclude immigrants, in defiance of the Constitution, before legislative districts are drawn,” Morial said.
Similarly, Nana Gyamfi, executive director of the Black Alliance for Just Immigration, said in a statement that the administration’s plan is an example of its “rogue and racist decisions intended to deprive Black communities of resources and execute a redistricting scheme that supports and perpetuates white supremacy.”
“This manipulative order to shorten the time will result in a significant undercount of Black folks, including Black immigrants,” Gyamfi said. “We will continue to make sure our community members are counted in the census even as we oppose this latest attack by this administration.”
In a statement Tuesday, Deborah Turner, president of the national League of Women Voters, said that states and municipalities rely on an accurate census count to make sure there’s enough funding for basic necessities, like infrastructure, schools, hospitals and social services.
“COVID presents a severe disruption to this vital counting process, and our government should be prioritizing plans that allow the Census Bureau to finish their work, not making last-minute changes designed to inhibit the process,” Turner said.
Los Angeles City Attorney Mike Feuer said in a statement that the Trump administration’s decision is unconstitutional, particularly in the midst of a devastating pandemic.
“From political representation to crucial public funding, every L.A. resident has so much riding on a full, fair and complete count,” Feuer said. “The administration’s abrupt, inexplicable and unlawful reversal would harm Angelenos for the next decade. It must not stand.”
The mayor of San Jose, Sam Liccardo, said in a statement Tuesday that it is up to everyone who “believes in the Constitution” to make sure a fair and accurate census is conducted.
“Even in this most unusual moment, it is outrageous that a U.S. president would seek to undermine the census, or any other foundational element of our Constitution, and we cannot normalize these assaults on our institutions,” Liccardo said. “In San Jose and cities throughout the nation, we will fight to defend this basic principle of human rights.”
Latham partner Sadik Huseny said in a statement that the Census Bureau itself recognized that more time was needed to conduct the census because of the coronavirus pandemic.
“The sudden decision to cut short that timeline threatens vital government functions that rely on accurate census data, from Congressional apportionment to the equitable distribution of federal funds supporting basic needs such as food, health care and education, and is contrary to the Constitution and to basic principles of administrative law,” Huseny said.
Representatives for the Commerce Department, the Census Bureau and Salinas, California, did not immediately respond to requests for comment.
The National Urban League; the League of Women Voters; the Black Alliance for Just Immigration; Harris County, Texas and Commissioners Rodney Ellis and Adrian Garcia; San Jose, California; and King County, Washington, are represented by Latham & Watkins LLP, the Lawyer’s Committee for Civil Rights Under Law, and the Brennan Center for Justice.
San Jose is additionally represented by Mark Rosenbaum of Public Counsel.
Los Angeles is represented by Michael N. Feuer, Kathleen Kenealy, Danielle Goldstein and Michael Dundas of the city attorney’s office.
Salinas is represented by Christopher A. Callihan and Michael Mutalipassi of the city attorney’s office.
Counsel information for the defendants was not immediately available.
The suit is National Urban League et al. v. Wilbur L. Ross Jr. et al., case number 5:20-cv-05799, in the U.S. District Court for the Northern District of California.
–Additional reporting by Suzanne Monyak. Editing by Breda Lund.
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