The Census Data Collection Effort Shall Continue — Ninth Circuit Correctly Rules. Trump And Ross Will Not Be Allowed To “Gerrymander” US House Seats, By Cutting Off Census.

Another victory, for those of us who still believe our nation is ruled by laws — not despots. Just as we predicted — a month ago.

And so, it is yet another entirely-predictable loss, for Trump (we await the likely “hard pass” from the Supremes, as well). He and Wilbur Ross may not use the Census to reduce the number of US House seats allocated to districts that might have more undocumented persons, than others. The Constitution commands that the census count all persons — not citizens, for apportionment. End of story. Here’s the latest well-grounded 21 page Ninth Circuit opinion, overnight:

…Moreover, the December 31, 2020, deadline is nearly three months away. As we have already stated, predictions as to whether it can still be attained are speculative and unstable. And any harm from governmental attempts to meet the December 31 date are likely less irreparable than the injury from displacing the October 31 data collection endpoint. If the Bureau meets the December 31 date by using procedures that violate any accuracy requirement embedded in the Enumeration Clause, or proceeds in an arbitrary and capricious manner, existing data can be reprocessed more easily than data collection can be restarted.

Moreover, given the remaining time, leaving the December 31, 2020 date in place as an aspiration will have no immediate impact. Perhaps the Bureau will find that with an extraordinary effort or changes in processing capacity, it is able to meet its deadline. Or the Department of Commerce may seek and receive a deadline extension from Congress. Or perhaps the Bureau will miss the deadline, as statement after statement by everyone from agency officials to the President has stated it would, due to the extraordinary circumstances of the pandemic. Missing the deadline would likely not invalidate the tabulation of the total population reported to the President, see, e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 157, 171–72 (2003), and may well be approved by Congress after-the-fact, as has happened in the past, see, e.g., Act of Sept. 1, 1841, ch. 15, § 1, 5 Stat. 452, 452 (1841).

Finally, and of great import to our balancing of the equities, and consideration of the public interest, even 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….

Onward, as Trump’s chances for retaining that office wink out of existence, like a small, lone candle — unglassed, and battered, on a windy night outdoors at a sidewalk cafe, in New Orleans, tomorrow… we shall smile.


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