The more than 8,800 records, plus an undisclosed number due for release later this week, document the administration’s controversial move to cut off the census at the end of September, rather than the planned October 31.
Critics say that the decision to cut off responses this month is one of several ways the administration is playing politics with the census — with the goal of creating Republican advantages in Congress and presidential elections for the next decade.
Several groups suing the government have asked the court to require census counting continue into October.
But in an odd maneuver to stop documents from being released, the Justice Department has essentially asked Judge Lucy Koh to rule against the administration.
Justice Department attorney Alexander Sverdlov made a multi-step proposal at a Monday hearing: First, Koh would rule the documents are required for the government to win its case. Second, the government would refuse to produce the documents. And then third, because the administration had not produced required documents, “the government loses” its effort to block a preliminary injunction.
“If this court wants to enter a preliminary injunction, it can do so,” to stop the government from cutting off the census early, said Brad Rosenberg, another Justice Department attorney.
The administration could appeal the decision to a higher court, Rosenberg noted.
And the decision could prevent the release of the documents entirely. If the trial court does not obtain the documents and rules against the administration, that ruling could be overturned by an appeals court that faults the trial judge for not amassing the appropriate records.
Koh said at the hearing she is “very disappointed and surprised” that the government released over the weekend only a small portion of 8,800 documents that were due. DOJ said it had time to review only 2,400 of the documents. Most of what it released was already public information.
She noted that most of it was already given to the Commerce Department inspector general, which is conducting a review of the decision. She has asked the administration to consider giving her the full set of records it gave to the IG for a private review.
Rosenberg said “there are questions of impossibility with regard to our ability to review and log the number of documents that are involved,” but both he and Sverdlov declined to say whether the government could produce all of the documents by September 30.
Melissa Sherry, an attorney representing the groups suing the government, said she is concerned the government “cherry picked” a set of “very irrelevant documents.”
“There’s precious few documents during the relevant time period,” Sherry said.
Internal documents from the Commerce Department, which runs the census, have already played a substantial role in how the census was conducted.
Last year, revelations from documents cast doubt on the administration’s rationale for adding a question about citizenship to the census, which critics said could have discouraged people from responding. The Supreme Court eventually said the question couldn’t be asked.