I don’t want to be a pessimist, but a cursory look at oral arguments in the Supreme Court case over whether the Trump administration can pose a citizenship question on the 2020 census offers no room for hope. It just seems likely that the Roberts Court is sufficiently political to waive aside whether Commerce Secretary Wilbur Ross acted illegally in demanding the question. The only number you need to know is 6.5 million: That’s the projected number of people, both citizen and noncitizen, that a Census Bureau analysis predicted would go uncounted if the question was included on the 2020 form.
That number would come mainly from immigrants who are afraid to turn in the forms and expose themselves or a family member to possible deportation. Career officials at the Census Bureau warned Ross about this likely undercount, but of course that’s the whole point—to shortchange immigrant-rich areas for federal dollars and electoral apportionment, the raw material used to set congressional and state legislative districts. In addition to robbing communities of funds, the outcome will reduce the representation of areas that traditionally vote Democratic in Congress, the Electoral College, and the states. It’s a political power play, and the Court’s conservatives appear on board.
So the right question to ask, as Kevin Drum does here, is this: How should liberals react? Should they spend lots of money—in a presidential election year—to ensure immigrants, even the undocumented, fill out the census form? How would they reassure frightened and intimidated people that they do not face danger from being counted, and that they face more danger from federal monies and representation being drained from their communities?
When I looked into this, I found out that just telling people to lie on the census form and check the citizenship box would open campaigners up to prosecution. Terri Ann Lowenthal, the former staff director of the House census oversight subcommittee and now a consultant on census-related issues, pointed me to 13 U.S.C. Section 222, which states that anyone taking action “with the intent or purpose of causing an inaccurate enumeration of population to be made” can be fined up to $1,000 or imprisoned for up to a year. Given the occupant of the White House and his right hand in the Justice Department, a showy campaign to falsify census information would almost certainly result in some punishment.
I am not advocating for anyone to improperly fill out the census form. But I was a census enumerator myself in 1990, and I know that I was instructed to get residents to fill out as much of the form as possible. Even if I could only get the number of people in the home, that form would be counted. “People and households are counted even if they don’t answer all the questions,” Lowenthal told me.
If households are counted even if they leave the citizenship question blank, the danger to electoral apportionment and federal funding allocation could be removed. Article I and the 14th Amendment to the Constitution clearly mandate counting “the whole number of persons in each state.”
However, fears have been raised that the Census Bureau could publish block-by-block data of noncitizens, or even those who didn’t affirmatively identify as citizens. States could pick that up and use it in their redistricting calculations, filling districts with equal numbers of eligible voters.
This possibility has been litigated, up to the Supreme Court, all the way back in … 2016. In Evenwel v. Abbott, the Court ruled unanimously that states can use total population, not merely voter-eligible population, in drawing state legislative districts. Texas residents sued to block noncitizens from the count. Justice Ruth Bader Ginsburg wrote in the majority opinion, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”
Every member, including the court’s conservatives, joined that opinion. Justices Clarence Thomas and Samuel Alito, in concurring opinions, signaled that they might like to challenge that in the future. Chief Justice Roberts, pointedly, did not. Even if the Court reversed itself on this question, that would only happen after drawn-out litigation, and probably not in time for the 2022 midterms. But there are a few questions to ponder in the interim.
First, would the absence of an answer to the citizenship question truly constitute an admission of noncitizenship, for these redistricting purposes? A family could have rushed through the form and just missed the question. Can representation be effectively taken from that family based on that? I’d imagine there would be immediate lawsuits.
Second, we’re not talking about apportionment to the states, but how they would use citizenship information in redistricting. And what states would actually do that? California, for example, or New York, would almost certainly not eliminate noncitizens from the redistricting equation. Conservative states that might are already heavily gerrymandered: Think North Carolina, Wisconsin, or Ohio. I don’t see how much more the citizenship information could skew districts that are already skewed.
So really, what we’re asking here is whether Texas would use this data to change their legislative districts. And in 2016, the Supreme Court said no, although that was a question of citizens trying to invalidate the actions of the state government. If the state affirmatively attempted to redraw, the Court might respond differently.
The fact that Texas residents sued in 2016 reflects the absurdity of this debate—there is already reasonably accurate census information, through the American Community Survey, of numbers of noncitizens in various census blocks. The citizenship question is unnecessary because the answer is fairly well known. And that may also prove a challenge for any state that attempts this maneuver: Which count do you go by? The count in the 2020 census enumeration, which the Census Bureau’s own staff has said would be incorrect? Or the survey data?
Between litigation over how to count households that leave the citizenship question blank, litigation over which data are more accurate, and litigation over whether the 14th Amendment’s “one person, one vote” standard controls in the case of redistricting, it would take years and years to settle the question. And of course, none of that litigation would even be able to start until after 2020, when we might have a new Democratic president in the White House, who could simply choose to not release citizenship question data to the states.
I remember thinking shortly after Donald Trump’s election about how he would run the 2020 census, and the truly awful implications of that. But let’s be clear: Trump’s intention for the citizenship question is to have fewer noncitizens return the form. If everyone living in America returns the form and just leaves the citizenship question blank (again, not something I am advocating), that ruins his devilish plans.