U.S. District Judge Lucy Koh in San Jose told government attorneys that they weren't complying with her order to produce administrative records during a hearing in a lawsuit over whether the once-a-decade census will finish at the end of September — or the end of October.
The documents that government attorneys had produced so far were already publicly available, for the most part, she said.
Koh said she was “very disappointed and surprised."
When Koh asked government attorneys whether they would ever be able to produce the documents before the end of the head count on Sept. 30, government attorney Brad Rosenberg said, “We are not in a position to make that kind of statement."
Government attorney Alexander Sverdlov said the attorneys had been hampered by trying to review more than 8,000 documents in a short amount of time.
“We have been working around the clock on these issues," Sverdlov said.
Koh proposed a compromise in which the Census Bureau would instead turn over records that it had previously given to the Office of Inspector General, the bureau's watchdog agency, covering much of the same decision-making process. Under the proposal, the judge would look at the records privately.
“If you are interested in a quick decision, this would solve everyone's problem," she said.
Earlier this month, Koh issued a temporary restraining order prohibiting the Census Bureau from winding down 2020 census filed operations until a hearing is held Thursday on a request for a preliminary injunction.
The temporary restraining order was requested by a coalition of cities, counties and civil rights groups that had sued the Census Bureau. They are demanding it restore its previous plan for finishing the census at the end of October, instead of using a revised plan to end operations at the end of September. The coalition had argued the earlier deadline would cause the Census Bureau to overlook minority communities in the census, leading to an inaccurate count.
Government attorneys told the judge that the Census Bureau had no choice but to finish the count at the end of September since the Republican-controlled Senate hadn't taken up a request from the Census Bureau to extend the deadline for turning over the numbers used for deciding how many congressional seats each state gets. The 2020 census also will determine how $1.5 trillion in federal spending is distributed each year.
But the lawsuit contends the Census Bureau changed the schedule to accommodate a directive from President Donald Trump to exclude people in the country illegally from the numbers used in redrawing congressional districts. Last week, a three-judge panel in New York blocked the directive, saying it was unlawful.
During Monday's virtual hearing, Koh also expressed concern for residents displaced by wildfires in the West and hurricanes along the Gulf Coast. She asked the government attorneys to provide details on how the Census Bureau plans to continue counting households in disaster areas, noting she was in San Jose where there have been health warnings against going outside for almost a month because of wildfires.
“Are you saying, 'We are cutting our losses and we don't care?'" Koh said. “What is the Census Bureau planning to do?"
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