Constitution Daily

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It’s final: no citizenship question on 2020 census

July 3, 2019 by Lyle Denniston

 

In a decision that seems sure to have a significant impact on American politics over the coming decade, the Trump Administration decided on Tuesday to carry out the 2020 census without asking everyone in the nation about their citizenship. The question, if asked, was likely to reduce the political power of larger states in future elections for the presidency and the House of Representatives.

The decision came five days after a divided Supreme Court rejected the Administration’s primary reason behind the plan to ask the question. The end of that plan closed a political and constitutional controversy that began unfolding soon after President Trump entered office two and a half years ago.

Commerce Secretary Wilbur L. Ross, who supervises the census and was the main official behind the now-abandoned plan, said in a statement Tuesday: “I respect the Supreme Court but strongly disagree with its ruling regarding my decision to reinstate a citizenship question on the 2020 census. The Census Bureau has started the process of printing the decennial questionnaire without the question. My focus, and that of the Bureau and the entire Department is to conduct an accurate census.”

A Justice Department lawyer also notified other attorneys in a pending court case on the controversy about the decision. All that appeared to remain of the legal fight was for the federal courts involved to close all or at least most of the lawsuits targeting the citizenship inquiry.

The Supreme Court’s 5-to-4 ruling last Thursday had not barred the government from asking the question, but did order it to reconsider the plan after concluding that the reason given for it was “contrived” and “pretextual.”

The rationale that Secretary Ross and his aides had given repeatedly, especially in filings in the court cases brought by challengers, was that data gathered by asking the citizenship question would help the Justice Department in enforcing federal voting rights laws. The evidence in the case that went to the Supreme Court, the majority of Justices found, did not support that claim.

It seemed apparent on Tuesday that Secretary Ross and his aides either could not come up with another plausible justification, or at least did not want to delay preparations for the census by having the legal controversy continue, as it otherwise would have.

It is not entirely clear where the idea to add the question originated in the Trump Administration, but there was evidence in the court cases that former White House aide Steve Bannon and a former outside adviser to the President, former Kansas Secretary of State Kris Kobach, had pressed Secretary Ross to take the step. Kobach has long argued that the census should only count citizens or legal residents, and not include undocumented immigrants.

Secretary Ross went looking elsewhere in government to try to get someone to put forth a reason to justify the question. Civil rights enforcers in the Justice Department agreed to do so and proposed the voting rights enforcement rationale.

The challengers who filed lawsuits in three federal courts to block the question – state and local governments and civil rights advocacy groups – contended that the voting rights enforcement argument was a sham and that the real reason was a desire to reduce the count of Hispanics and non-citizens. That was a claim of racial discrimination.

In one curious facet of the whole controversy, the race bias claim was not upheld by any of the lower courts that ruled against the question, decisions that the Trump Administration then appealed to the Supreme Court. The Justices also did not rule on the bias claim.

The challengers, however, had recently discovered what they deemed to be new evidence of bias, and they were preparing to press that claim after the Supreme Court ruled last week. Whether that claim will remain alive in any way in the lower courts seems doubtful.

The Constitution requires that the census taken every ten years must be a total “enumeration” and that has long been understood as counting everyone living in America at the time the census is performed – citizens and non-citizens, legal residents and immigrant residents living in the United States without legal permission.

One of the principal claims of the challengers was that the presence of the citizenship question on census forms would discourage Hispanic households and those of non-citizens from responding, for fear that the disclosures would lead to the deportation of relatives or friends. The argument was that this refusal to respond would result in an “under-count” that might leave out 6 million or more people.

Since Hispanics and non-citizens are concentrated in larger states and larger cities, a significant under-count would probably lead to the loss of seats in the U.S. House of Representatives for states such as California, Florida and New York. Allocation of seats in the House is based, under the Constitution, on each state’s total population as counted in each census.

If the predictions of an under-count were reliable, the affected states’ delegations in the House of Representatives would have been smaller for the elections to be conducted after the census – in 2022, 2024, 2026 and 2028. Since the number of seats that a state has in the House also translates into votes in the Electoral College, under-counted states would have lost power in the College when it casts votes on the presidency in 2024 and 2028.

Those effects now appear to be unlikely to occur, in the wake of the abandonment of the citizenship inquiry on the census forms for next year. The actual taking of the census is set to begin next April 1.

The elections in 2020 will not be affected by the new census, because it will not have been completed by then. It is due to be completed by the end of the year, weeks after the November election.

Besides their importance in federal elections, the population data gathered by the census is used in drawing new election district boundaries of state legislatures and local governing bodies, to account for shifts in population since the prior census ten years earlier.

There is a substantial financial impact of the census, too. The population figures of the states are the basis for dividing up some $800 billion a year in federal funds.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.

 

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