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Attorneys argue Trump’s exclusion order for count is illegal

ORLANDO, Fla. (AP) — Any effort to extend the 2020 census beyond the end of September would be costly and burden the agency that runs it, government attorneys said in response to cities and civil rights groups who want another month to ensure that minority communities aren’t undercounted.

The U.S. Census Bureau already has taken steps to end field operations for the once-a-decade head count and some areas of the U.S. will wind down operations ahead of a new Sept. 30 deadline, the attorneys said in court papers filed this week in San Jose, California. The previous deadline was Oct. 31.

The census is used to determine how to distribute $1.5 trillion in federal funding and how many congressional seats and Electoral College votes each state gets.

The lawsuit, which asks a judge to restore the October deadline, argues that ending the census early will lead to an inaccurate count that overlooks minority communities. It contends the Census Bureau changed the schedule to accommodate a directive from President Donald Trump to exclude people in the country illegally when congressional districts are redrawn, a process known as apportionment.

More than a half dozen other lawsuits have been filed in tandem across the country, challenging Trump’s memorandum as unconstitutional and an attempt to limit the power of Latinos and immigrants of color during apportionment.

In the first of those lawsuits to be argued, attorneys for the State of New York and civil rights groups on Thursday told a three-judge panel in New York federal court that the memorandum needed to be ruled illegal and unconstitutional. They said during a telephone hearing that the order was suppressing participation in the count and would cause some states to lose congressional seats that they otherwise would have had.

“We don’t think it’s a difficult constitutional question,” said Judith Vale, an attorney with the New York Attorney General’s Office. “The defendants have no authority, no discretion to subtract millions of undocumented immigrants.”

Dale Ho, director of the ACLU’s Voting Rights Project, told the federal judges that the president doesn’t have the discretion to “manipulate” the census data to his liking once the count is finished.

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“If the president can revise and alter the census count … there’s no real limit to what he can do,” Ho said.

A government attorney, Sopan Joshi, told the judges that the president has almost unlimited discretion to exclude people in the country illegally from the apportionment count, though he said the president couldn’t exclude people from the apportionment count because of race or religion.

Joshi also said the legal challenge to the president’s memorandum was coming prematurely since the Census Bureau hasn’t yet determined whether it will be able to comply with it by calculating the number of people in the country illegally. Trump last year directed the bureau to gather federal and state administrative records to help with that calculation, an order that a separate lawsuit also challenges as unconstitutional.

Under questioning by one of the judges, Joshi said there was no historical precedent to exclude people in the country illegally from the apportionment process, but it didn’t matter since the president has broad leeway in making decisions on the census.

Facing delays caused by the coronavirus pandemic, the Census Bureau earlier this year pushed back wrapping up the head count of every U.S. resident from the end of July to the end of October.

The bureau asked Congress to extend the deadline for turning in data used for drawing congressional districts from Dec. 31, 2020, to April 30, 2021. Top Census Bureau officials had said it would be impossible to meet the end-of-the-year deadline, and that the bureau expected bipartisan support for the request.

The request passed the Democratic-controlled House as part of coronavirus-relief legislation but it has not gone anywhere in the Republican-controlled Senate.

Three district court judges heard the New York case, as required when a lawsuit challenges the constitutionality of apportionment. They promised to issue an order as soon as possible, though the case likely will be appealed to the U.S. Supreme Court.