SCOTUS Will Decide Citizenship Question in April

February 15, 2019 | 5:06 pm
Photo: Quinn Dombrowski/Flickr
Michael Latner
Senior Voting Rights Fellow

On Friday, the Supreme Court acted with unusual speed to agree to decide whether the Trump administration can add a citizenship question to the 2020 Decennial Census. The hearing is now set for the second week of April. Earlier in the week, leaders from both political parties in the House of Representatives urged the Court to decide the case before the end of its current term, even though they disagree over what the Court should say.

At issue is the legality of the citizenship question. In January, Judge Jesse M. Furman of the United States District Court in Manhattan decided that Commerce Secretary Wilbur Ross broke “a veritable smorgasbord” of federal rules when he announced that the question would be added last year. Citing the cherry-picking of information and previous misleading statements given under oath, the judge rejected the Trump administration’s rationale for adding the question.

That rationale has centered on the claim that previous Censuses have included a citizenship question, and that the addition of the question is necessary for the effective enforcement of the Voting Rights Act by the Department of Justice’s Civil Rights Division. Plaintiffs counter that there has not been a citizenship question on the Census since the Voting Rights Act was passed in 1965, and they challenge the administration’s rationale, based largely on the reaction of the scientific community.

Census experts ranging from all of the recent past Census directorsnumerous scientists and scientific organizations that use Census data, as well as the nation’s premier civil rights and voting rights groups, have all argued that the addition of such a question threatens the scientific integrity of the entire Census.

Pilot studies and previous analysis revealed that immigrants and other ethnic, racial, and religious groups would be more difficult to reach with the addition of the question. Undercounts of any populations threaten the integrity of the data collected, data used to apportion seats to the House of Representatives, fund over 300 programs that allocate $800 billion in federal funds, and provide private sector market segmentation, consumer analysis, employment and a massive amount of other Census-dependent economic data.

Political scientists and voting rights scholars argue that the distortive effects of such an undercount undermine the rationale for the question, as voting rights litigation cases depend on accurately estimating the number of voting age individuals in specific geographies. They point out that the current methods of estimation, which use anonymous questions asked of populations sampled by the American Community and Current Population Surveys, provide more accurate estimates of the populations in question.

The Trump administration maintains that “[o]ur government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer.”. Dale Ho, director of the A.C.L.U.’s Voting Rights Project, countered that the January ruling was “a forceful rebuke of the Trump administration’s attempt to weaponize the census for an attack on immigrant communities.”

The 14th Amendment to the Constitution provides that representatives in the House “shall be apportioned among the several States … according to their respective Numbers,” with the “Numbers” determined by “counting the whole number of persons in each State.”

Several advocates at the margins of immigration policy and constitutional theory, including the Heritage foundation’s Hans von Spakovsky, have argued that the term “persons” in the 14th Amendment should be re-interpreted to exclude individuals who are in the U.S. illegally, without the permission of the federal government. Von Spakovsky served on President Trump’s disgraced “Voter Fraud” commission.

The Court should affirm the lower court’s ruling. A corrupted census has untold consequences for the country. And a politicized census is a power grab by entrenched interests. Congress should conduct oversight to ensure that the census is conducted fairly and without bias, and to take steps to ensure that questions are added to the census only after undergoing rigorous statistical testing. We must be vigilant about the integrity of the Census, which is, after all, the story of America.