U.S. District Court rules in favor of Navajo Nation and co-plaintiffs to allow Census count to continue through October, appeal expected
Friday, September 25, 2020

WINDOW ROCK, Arizona – On Thursday, Judge Lucy H. Koh of the U.S. District Court for the Northern District of California granted Navajo Nation and co-plaintiffs’ motion for stay and preliminary injunction, requiring the 2020 Census count to continue until the end of October. However, an appeal is expected to be filed by the U.S. Census Bureau, the Department of Commerce, and their lead officials.

The Navajo Nation officially joined the lawsuit on Sept. 1, 2020, against the U.S. Census Bureau and the Department of Commerce based on the adoption of an illegally expedited plan, known as the “Replan,” which shortened the time to complete data collection for the 2020 Census by imposing a new deadline of Sept. 30, 2020 and further shortened the time to complete data processing by imposing a new deadline of December 31, 2020. The Navajo Nation and other plaintiffs contended that federal defendants illegally curtailed time to complete the 2020 census, threatening to cause a significant undercount of minority populations, including members of the Navajo Nation.

“As the first people of this country, we have every right to be counted in the 2020 Census. We have a strong and diverse coalition of plaintiffs who are demanding that the U.S. Census Bureau uphold their original plan to allow the census count to continue through the month of October. The coronavirus pandemic has set all of us back and created many challenges to get people counted, especially for rural areas such as the Navajo Nation. Although we do anticipate an appeal to be filed by the federal officials, we ask them to respect Judge Koh’s ruling to allow the census count to continue until the end of October without disruption,” said President Nez.

The Navajo Nation issued a proclamation recognizing the month of September 2020 as “Navajo Nation Census Month,” to encourage the Navajo people to participate in the 2020 Census to ensure a complete count of all citizens on the Navajo Nation. As of Thursday, the Navajo Nation’s response rate for the 2020 Census was only 20.5 percent.

In addition, the Nez-Lizer Administration has also provided many opportunities for Navajo Nation residents to be counted for the census during food and care package distribution events where Census representatives are on-site to help people get counted.

The lawsuit was first filed on Aug. 18, 2020, shortly after the Department of Commerce and the Census Bureau, suddenly and without explanation, announced the Replan on Aug. 3, 2020. The Replan threatens to undercount “hard-to-count” populations, which are primarily minority communities, including members of tribal nations.

In the years leading up to the 2020 Census, the federal government carefully planned and prepared to ensure a more accurate count for 2020, by ensuring ample time was provided to complete the in-person data-collection and subsequent data-processing phases of the census. The plaintiffs contend that the federal government had no sound basis for expediting deadlines for these phases with the Replan. The Replan shortened the time for the non-response follow up phase of data collection, which involves census enumerators going door-to-door at residences that have not responded in previous phases. This phase is especially critical on the Navajo Nation, where response to earlier phases of data collection are low, and much lower in relation to other regions of the United States.

“Completing the census is already very challenging for many households due to the lack of telecommunications infrastructure in many Navajo communities, but we are providing assistance by partnering with census officials during our distribution events. The COVID-19 pandemic has created many challenges, especially for our elders and remote residents. We need adequate time to complete the 2020 Census with an accurate count,” stated Vice President Lizer.

“The Navajo Nation acknowledges Judge Koh’s tireless efforts on a highly expedited schedule to ensure this case, and the census, are fairly conducted.” said Navajo Nation Attorney General Doreen N. McPaul. “The Judge’s ruling in favor of Plaintiffs’ motion is a significant step forward in the fight for an accurate census to ensure hard-to-count populations, including our Navajo people, are fairly accounted for and provided the resources and representation to which they are entitled under the U.S. Constitution.”

Attorneys with the Navajo Nation Department of Justice representing the Nation in the case stated that the case could go to a full trial on the merits at the District Court, but that is unlikely. Defendants will likely seek appellate review of Judge Koh’s ruling before the 9th Circuit U.S. Court of Appeals, or possibly will seek to skip the court of appeals and seek direct review by the U.S. Supreme Court.

The court ruling is available at: brennancenter.org/sites/default/files/2020-09/Opinion%20on%20PI.pdf.

The Nez-Lizer Administration encourages everyone to self-respond for the 2020 Census online at 2020census.gov or by calling (844) 330-2020.