Census 2020 will soon be underway and it is still unclear whether or not it will contain the citizenship question.  Article 1, Section 2 of the U.S. Constitution required that a census of the population be conducted within three years of the first meeting of the U.S. Congress, and then every ten years hence. Census data are used to apportion representatives from the states to the U.S. House of Representatives, to draw political districts, and to allocate federal, state, and local funds. Although the Framers of the Constitution called for an enumeration by a full count of “free Persons,” they also called for counting only three-fifths of all other persons. Amendment XIV to the U.S. Constitution was passed in 1868, and provided that Representatives are to be apportioned by counting “the whole number of persons,” except for “Indians not taxed,” in each state.  Although special censuses were conducted of Native Americans, it was not until 1924 that they were granted citizenship by Federal statute, and since then have been included in the decennial census.

The citizenship question was included in every census from 1820 through 1950, except for that of 1840. Since the 1960 Census, the citizenship question has not been asked of every respondent, and the position of the Census Bureau has been that use of the question would make it difficult to count “hard-to-count” groups such as noncitizens, who are not likely to participate due to fear that the data might be used against them or their families. Since 1950, the Census Bureau has conducted extensive research and development as it plans for each decennial census.  Today, the controversy over the use of the citizenship question has brought to the fore both the purpose of the question and the adequacy of testing conducted by the Census Bureau.

Inclusion of the question in the 2020 Census is sometimes attributed to Steve Bannon, former White House chief strategist. As early as February 2017, he apparently had a discussion with Secretary of Commerce Wilbur Ross, who oversees the Census Bureau, in which he suggested inclusion of the question in the questionnaire.  In March 2017, Secretary Ross directed the Bureau to include the question. With Bureau staff concerned that the request by Ross would not stand legal muster, staff members sought to get another Federal agency to request inclusion of the question. This went on for several months, with Bureau staff meeting with members of the Department of Justice, and Ross meeting with Attorney General Jeff Sessions. Interestingly, discussions also occurred with Kris Kobach, then Kansas Secretary of State and nationally known conservative legal activist with strong anti-immigrant views. Ross, himself, had telephone and email conversations with Kobach, who suggested specific wording for the citizenship question as early as July 14, 2017.  

Collectively, these discussions led to the rationale that the citizenship question was needed to enforce the Voting Rights Act, and the Department of Justice “got” on board to request that the question be included in Census 2020. While Ross claimed that the Department of Justice had requested that the question be added to the questionnaire, the reality is that he and Census Bureau personnel actively sought both the support of the Department of Justice and a rationale for using the question. Those came in the form of a letter in December, 2018 by Arthur Gary, General Counsel, Justice Management Division, requesting that the citizenship question be reinstated in the “long form” of the census on the basis that the data are needed for the enforcement of Section 2 of the Voting Rights Act, which prohibits discrimination on the basis of race, color, or membership in a language-minority group. In particular, Gary argued that data on voting age citizens were necessary for assessing “vote dilution” and establishing whether or not violations of Section 2 are occurring in which a voting-age population of a racial minority group that is a majority in a jurisdiction is continually defeated at the polls because its voting-age majority has been divided.  

Interestingly, the ostensible reason for using the citizenship question is to prevent racial discrimination that occurs through the redistricting process. Yet, the letter was drafted by John Gore, a Trump appointee with a history of defending Republican state redistricting plans challenged as racial gerrymandering by opponents. In other words, he was defending redistricting plans that favored Republicans, most likely by diluting the votes of ethno-racial minority voting-age populations. The rationale provided in the letter is astonishing, but not surprising given that the Trump Administration and political conservatives are widely known to be less concerned with eliminating racial discrimination and more concerned with supporting voter suppression, while implementing anti-immigrant and anti-immigration policies and practices. In fact, efforts by political conservatives to include the citizenship question in the census go back more than a decade. For example, in 2009, then Senator David Vitter from Louisiana attempted to amend the Commerce, Justice, Science Appropriations bill by adding language that would require asking all persons their citizenship and immigration status in the 2010 census. Having failed at that, Vitter again made legislative efforts to identify non-U.S. citizens in 2014 and 2016. Both failed.

Efforts by the Trump Administration to use the citizenship question have recently been stalled by court cases initiated by several states that oppose inclusion of the question. On January 15, 2019, in the first major ruling on the issue, Judge Jesse Fuhrman, Southern District of New York, held that that Secretary Ross violated the Administrative Procedures Act (APA) and the Census Act of 1976 in the way that he went about adding the citizenship question to the census questionnaire.  Judge Furhman vacated Ross’ decision to include the question in the Census 2020 questionnaire, prohibited him from including the question, and remanded the matter back to the Secretary of Commerce for further consideration in accordance with the Court’s decision.

In short, the Judge agreed in part with the plaintiffs in the case, “Governmental plaintiffs” and “non-governmental organizations,” that argued that Secretary Ross had violated the APA by acting in a “capricious and arbitrary” manner, and that he had violated the Due Process Clause of the Fifth Amendment because his decision was “motivated in part by invidious discrimination against immigrant communities of color.” Judge Furhman agreed with the plaintiffs that Ross had violated the APA, but held that the plaintiffs had not proven that the Secretary was motivated by invidious discrimination, basically because they were unable to depose Ross due to the Supreme Court’s decision that stayed an earlier decision by Furhman that Ross could be deposed in the matter.

Fuhrman agreed with the plaintiffs that the harms from including the citizenship question on the Census 2020 questionnaire would include: 1) a significant reduction in the response rates among immigrant and Hispanic households; 2) a reduction in the quality of census data; and 3) the loss of power and funds as a result of differential undercount of certain segments of the population. Additionally, Furhman held that Ross violated the APA in multiple ways: 1) the decision was arbitrary and capricious in that he had failed to take into account several important aspects of the problem; 2) either ignored or badly misconstrued the evidence regarding the potential effects of its use; 3) failed to act rationally given the evidence regarding the use of the question; and 4) failed to justify his departure from past Bureau policies and practices. Finally, Fuhrman held that Ross had violated the Census Act by failing to inform Congress at least three years in advance of the “subjects proposed to be included, and the types of information to be compiled.” While Ross reported to Congress in March of 2017 that the subjects would be the same as those included in Census 2010, he did not include the citizenship question. It was not until December 2017 that he reported to Congress the inclusion of the citizenship question, and on March 26, 2018, he again directed the Census Bureau to reinstate the question in the Census 2020 questionnaire. More recently, Judge Richard Seeborg, U.S. District Court, Northern Disrict of California, like Fuhrman, ruled against Ross.

Since Fuhrman’s decision, the Trump administration asked the 2nd U.S. Circuit Court of Appeals to review the case, then requested the Supreme Court to bypass the Court of Appeals and render a final decision by June, when the census questionnaire has to be finalized. The Supreme Court has agreed to review Fuhrman’s ruling, and will hear arguments in April. Given the recent changes in the composition of the Court, it is difficult to predict whether or not the Justices will decide in favor of the Trump Administration. It is clear that the Federal Government has the authority to include the question, but it is also clear that it should not be done for political purposes or in violation of the APA and the Census Act. Finally, it is evident that Ross’ rationale for including the citizenship is a pretext for something else—perhaps promoting voter dilution among immigrants and Latinos?