A group of Florida Republicans has appealed a ruling by a federal court in that state throwing out a lawsuit seeking to require the U.S. Census Bureau to revise its data for the 2020 census. Arguing that the statistical methods the Census Bureau used in the 2020 census led to inaccurate results, the challengers told the justices that, “[w]ith each decade the census strays further from” the “‘actual Enumeration’” required by the U.S. Constitution, “and statistical adjustment opens the door to political tampering. If no plaintiff can reach the merits,” they argued, “that drift is permanent and unreviewable.”
The census takes place every 10 years, and the Constitution instructs that it must be “calculated by ‘actual Enumeration.’” A federal law enacted in 1997, known as Section 209, allows anyone “aggrieved by the use of any statistical method in violation of the Constitution or any provision of law … in connection with” the census to file a lawsuit seeking “declaratory, injunctive, and any other appropriate relief against the use of such method.”
Because of the COVID-19 pandemic, the Census Bureau relied in part on statistical imputation – using statistics such as administrative records or data for nearby households to predict what missing data would be – instead of direct contact to count people for the 2020 census. A 2022 survey conducted by the bureau suggested that it had undercounted Florida’s population by 3.48%.
The challengers – which include the University of South Florida College Republicans and U.S. Rep. Byron Donalds, who on Tuesday became the state’s Republican nominee for governor – filed a lawsuit in federal court in which they alleged (among other things) that the bureau’s statistical methods violated the Constitution and cost the state an additional seat in the U.S. House of Representatives.
A three-judge district court (which Congress designated to hear claims under Section 209) dismissed the group’s claims. The majority first ruled that the challengers did not have a legal right to sue, known as standing. They had not “plausibly allege[d]” that the Census Bureau’s statistical methods actually caused the undercount in Florida in 2020, the majority wrote. And even if the challengers were to prevail, the majority continued, the remedy that they are seeking – “to find and directly contact 18.8 million people whom the Bureau could not find in 2020 and who may live in different places now” – “seems exceedingly impracticable, if not impossible.” This is particularly true, the majority concluded, when the challengers’ lawsuit comes “nearly five years” after the 2020 census, a period during which there has been “substantial changes” in the make-up of Congress “following two federal elections and ongoing nationwide redistricting.”
The challengers’ lawsuit cannot go forward for the separate reason, the majority added, that it came too late: Federal law establishes a blanket four-year statute of limitations for lawsuits “arising under an Act of Congress enacted after [1990].”
The challengers appealed to the Supreme Court on Aug. 6 (in a brief that was apparently docketed on Aug. 18). On the question whether they have a right to sue, they pointed to Utah v. Evans, a 2002 case in which the Supreme Court ruled (among other things) that Utah could pursue its challenge to a statistical method used by the Census Bureau in the 2000 census. “Evans,” they wrote, “is on all fours with this case.” For example, they said, their case “also seeks an injunction requiring recalculation and recertification by the Bureau. And there is a reasonable likelihood that a new count would, as a practical matter, lead to a more favorable apportionment of Representatives to Florida.”
They also argued that their case is governed by the six-year statute of limitations for lawsuits “against the United States.” They emphasized that the law creating the general four-year statute of limitations specifies that it applies unless “otherwise provided by law.” If Congress wanted to exempt lawsuits like this one from the six-year statute of limitations, they said, it could have done so explicitly – but did not.
The Census Bureau’s response is due on Sept. 17.
