Herring continues fight to block Trump administration’s attempts to undermine Census

Attorney General Mark R. Herring today joined a coalition of attorneys general, cities, counties, and the bipartisan U.S. Conference of Mayors in filing an amicus brief to block the Trump administration’s attempts to undermine the 2020 Census.

Earlier this month, the U.S. Census Bureau announced that it was reducing – by an entire month, from Oct. 31 to Sept. 30 – the time in which self-response questionnaires will be accepted and door-to-door follow-ups by census enumerators will take place. Attorney General Herring and his colleagues filed an amicus brief in National Urban League v. Ross, supporting the plaintiffs’ request for a nationwide stay or preliminary injunction to halt this “Rush Plan.”

The coalition argues that this expedited schedule will hamstring the bureau’s ongoing efforts to conduct the census and will thus impair the accuracy of its enumeration of the total population of each state.

“The Trump Administration has made multiple attempts to undermine and sabotage the 2020 Census in their ongoing, illegal efforts to exclude millions from being counted,” Herring said. “An undercount would have drastic impacts on how much federal funding Virginia gets for certain, important programs and could even impact how many representatives the Commonwealth has in Congress. Every single person living in Virginia must be counted in order to have an accurate decennial census and I will continue to fight the Trump Administration’s attempts to stop that from happening.”

In today’s brief — filed in the U.S. District Court for the Northern District of California —the coalition of 23 attorneys general, five cities, four counties, and the U.S. Conference of Mayors argue that the census determines the states’ political representation in Congress, provides critical data for states’ redistricting efforts, and affects hundreds of billions of dollars in federal funding to states and localities. An inaccurate census will directly impair those interests, inflicting harms that will persist for the next decade.

The administration’s efforts to reduce the time for both self-responses of the questionnaire sent to every household across the country, as well as non-response follow-up operations for those who don’t respond, will inevitably harm the accuracy of the population count. The shorter time period also flies in the face of what the Census Bureau previously said itself was necessary to conduct an accurate count, as it alters the deadline that the bureau had adopted specifically to accommodate the unique difficulties posed by the public health response to the COVID-19 pandemic.

A district court previously found — in the litigation over the citizenship question — that even a small undercount would raise a “significant risk of an apportionment loss” to Virginia and other similar states. Such a loss would deprive these states of political power in Congress for a decade, hampering their efforts to serve their residents and depriving them of the representation to which they would otherwise be entitled.

The undercount would also affect harm within states since census data is used for redistricting of state legislative seats as well.

Additionally, an undercount would affect hundreds of billions of dollars of federal funding that are dependent on the decennial census’s population count. In particular, at least 18 federal programs distribute financial assistance based in whole or in part upon each state’s relative share of the total U.S. population. Numerous other programs distribute funds based off of census data as well.

Further, self-response rates for 2020 lag behind the rates for 2010 in most states and, due to numerous factors, Virginia’s self-response rate remains below the national rate.

The coalition goes on to argue that the very integrity of the 2020 Decennial Census is at stake, and the defendants — the U.S. Department of Commerce, Commerce Secretary Wilbur Ross, the Census Bureau, and Census Bureau Director Steven Dillingham — have all repeatedly attempted to manipulate the census, in multiple ways, under the direction of President Donald Trump by previously attempting to add a citizenship question to the census and by excluding undocumented immigrants from the population count that will be used for congressional apportionment.

The coalition highlights that all three of these efforts disregard unambiguous constitutional or statutory requirements, consciously deviate from centuries of consistent practice, and fail to deal honestly with the public and the courts.

Last month, Herring and a coalition of states, cities and counties filed a lawsuit seeking to stop the Trump administration from politicizing the census and violating basic constitutional commands, and aiming instead to ensure the administration counts the “whole number of persons” residing in the country for apportionment, as the U.S. Constitution unambiguously requires.