On March 26, 2018, Secretary of Commerce Wilbur Ross determined that the Census Bureau would ask every person in the country about their citizenship status.
Specifically, the Census Bureau would add a question concerning citizenship status to the basic data sought in the decennial enumeration. The decision was immediately and enormously controversial;
many believed that the decision could put the enumeration itself in jeopardy.
It is impossible to overstate the constitutional significance of the decennial enumeration. The requirement to conduct an “actual Enumeration” of the population, once per decade, is embedded in the sixth sentence of the Constitution.
Because the enumeration drives the allocation of representation and taxation—establishing the basic ground rules for the composition of, and funding for, the governing entity that the Constitution created—the enumeration is the very first act that the Constitution prescribes as an express responsibility of the new federal government. It precedes the election of representatives and the selection of legislative process;
it precedes the power to coin and collect and borrow money;
it precedes the responsibility to establish defense forces and to declare and wage war;
it precedes the conduct of foreign relations and the establishment of a judiciary.
The terms of the initial enumeration, of course, reflected the deep stain of the compromise over slavery. The enumeration embraced a count of all of the people fully recognized as people and then added for representational purposes a fraction of each slave held as property.
As Janai Nelson recounts in detail, this was not the last instance in which choices related to the Census created or perpetuated deep injustice. Still, with time and bloodshed, the constitutional command has since become a clear mandate to count each and every individual in the country.
This enumeration remains the basis for apportioning seats in the House of Representatives—and, consequently, in the Electoral College as well.
Congress has authorized the Census Bureau to seek, in several different instruments, a great deal of additional exceedingly valuable information en route to producing a periodic statistical American snapshot.
Yet whatever other goals the Census Bureau may pursue, its single indefeasible obligation is to ensure, to the best of its ability, the absolute and inviolate integrity of the constitutionally mandated decennial count.
The content of the basic enumeration questionnaire has varied somewhat over time, but as of 2010, it was distilled to ten basic questions, designed to take ten minutes to complete.
The questionnaire attempts to capture the identity and location of each individual—that’s the minimum information required to meet the constitutional command. It also attempts to capture the sex, age (and date of birth), race,
Hispanic or Latino origin, household or familial relationship of each individual, and whether the respondent owns, rents, or otherwise occupies the residence.
And now, the questionnaire will ask about the citizenship of each individual as well.
This Essay attempts to parse the legal and political rationale and consequences of that decision. Part I examines the likely impact of the decision, demonstrating that Secretary Ross’s eleventh-hour decision presents risks for the decennial enumeration that the Census Bureau itself had previously deemed intolerable, and which have recently only intensified. Part II interrogates the rationale for the decision, finding that it is essentially unjustified by the public rationale offered. Part III probes alternative rationales beyond that pretext that might better explain why the decision was made. Several of these alternatives concern the allocation of political power in the decennial apportionment and redistricting cycle to come, including a long-simmering fight over the very nature of political representation.
I. The Consequences of the Citizenship Question
In the current political climate, asking a question about the citizenship of every individual in the country is no mere request for information. Those who work with communities skeptical about the role of the federal executive branch fear that the question will prove explosive.
Secretary Ross made the determination to ask this question despite his own admission that the career staff of “[t]he Census Bureau and many stakeholders expressed concern that . . . [the decision] would negatively impact the response rate” for the enumeration,
and despite the absence of any opportunity to test that impact before implementing the change. He did so despite the direct warning of six former Directors of the Census Bureau, whose collective twenty-five years of service as Director spanned eight presidential administrations (of both major political parties), that adding the question so late in the planning process would put the accuracy of the enumeration “at grave risk.”
The Titanic was launched with less hubris and more preparation.
A. Past Efforts to Collect Citizenship Information
It is true that the Census Bureau has collected information on the citizenship of the American public for many years. But the context for how this information was collected is vitally important. The last time a question about citizenship was asked on the basic decennial enumeration questionnaire was 1950,
when both the demographic composition of the country and the political climate were very different.
Beyond a special enumeration in New York and Puerto Rico, the 1960 Census did not ask about citizenship at all.
From 1970 on, questions about citizenship were asked only in the context of surveys distinct from the enumeration and delivered to a smaller representative sample of the population.
And when respondents to these surveys were asked about their citizenship, that question was lodged amidst a lengthy battery of other detailed and personal questions.
The length and detail of the American Community Survey (ACS), now the home for this supplemental inquiry, is significant. Not because the information is excessive—to the contrary, understanding who and where Americans are, what we do, and how we live is essential for the effectiveness and efficiency of public policy and private enterprise alike. Instead, the scope is significant because it mutes the impact of any one question. The Census Bureau estimates that the ACS, a twenty-eight-page instrument, will take the average household forty minutes to complete.
Because of the length and degree of intrusion, it is delivered only to a smattering of individuals on a rolling basis, eventually reaching 12.5% of households over a five-year span.
In this context, a question about citizenship, while still salient, may not stand out overmuch.
B. Collecting Citizenship Information During the Enumeration in a Climate of Fear
The decennial enumeration questionnaire stands in stark contrast. It contains ten short questions for the head of household, and seven short questions for everyone else.
It is asked of every single household in the country, in a massive government effort that amounts to the country’s largest peacetime mobilization.
It is designed to be short, simple, and minimally intrusive, to maximize response rates.
For households that do not respond by phone or the internet, enumerators will follow up by mail and in person.
Adding any content in this context—in the context of government officials sweeping the country door-to-door to ask a short series of questions—amounts to a substantial design change from asking the question in the ACS, with the potential to generate a substantial change in response behavior.
The change substantially elevates the prominence and salience of the question, magnifying its impact on the process of collecting data.
A question about citizenship status is not merely any question. Even in a less turbulent era, noncitizens are—or just as important, perceive themselves to be—comparatively vulnerable members of American society. Many prefer to remain silent about their noncitizen status.
Placing a citizenship question on the Census raises a serious concern that despite a legal duty to respond to the Census,
noncitizens—even in an era of enlightened goodwill—will engage disproportionately in civil disobedience rather than publicize their noncitizen status.
The Census Bureau has recognized this possibility. In 1980, the Bureau argued in federal court that adding a question about citizenship to the decennial enumeration would impair the enumeration itself:
[A]ny effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count. Obtaining the cooperation of a suspicious and fearful population would be impossible if the group being counted perceived any possibility of the information being used against them. Questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment and refusal to cooperate.
If the potential nonresponse anticipated from a citizenship question posed a risk to the accuracy of the enumeration in 1980, the volatility of the current political climate hardly provides less reason for concern. In 1950, when the Census last asked about citizenship in the enumeration, Americans had a very different relationship to the federal government. In the late 1950s, the National Election Study first regularly began asking Americans about their trust in the federal government; in those earliest surveys, seventy-three percent of the public trusted the government to do what is right.
By December 2017, that rate had plummeted to eighteen percent.
Moreover, the way that the federal government is currently perceived with respect to questions about citizenship is particularly fraught.
Immigration was one of the most salient issues in the 2016 election, and due to recent bitterly and prominently contested fights over immigration policy and enforcement, has grown even more salient since.
Concern over the citizenship question is not merely an issue for individuals whose own presence in the country may be in jeopardy, whether undocumented,
or—in this enforcement environment—even citizens.
Many citizens and legal permanent residents have family or cultural connections to those perceived to be at risk or are uncertain about who is at risk. Citizen householders concerned for family and nonfamily members at home or in the broader community may resolve to avoid the enumeration or omit household members in their responses; citizen children living with noncitizen parents or caregivers are also at risk of being left out.
And even minorities unconnected to any immigration controversy may feel unease in the present climate: Fear runs like contagion and infects friends and neighbors as well. Populations that are already among the most vulnerable generally are more likely to feel like they have more to lose when a government official shows up at their door asking for information, and may believe that the safest course is to keep their door firmly shut.
This growing fear was clear to Census officials in recent attempts to administer surveys with far less prominence than the decennial enumeration, well before the Census Bureau announced that it would add a citizenship question to the decennial instrument. The rates at which individuals refused to respond to the American Community Survey were higher in 2015 and 2016 than ever before in the survey’s history,
with the rate of nonresponse increasing faster in tracts with substantial concentrations of noncitizens.
And even among those responding to the ACS generally, individuals have been refusing to respond to questions about their citizenship at a growing rate,
with nonresponse rates growing most quickly for the Latino population.
By November 2015, nonpartisan career staff at the Census Bureau had already identified some of the significant challenges ahead. An operational report noted “[d]istrust in government,” “[d]eclining response rates,” and an “[i]ncreasingly diverse population . . . who may have varying levels of comfort with government involvement” as important hurdles for the decennial enumeration.
By November 2017—months before Secretary Ross announced that he would add a citizenship question to the decennial instrument—the alarm bells for the enumeration had grown significantly louder. Nonpartisan career staff at the Census Bureau cited a “recent increase in respondents . . . spontaneously expressing concerns to researchers and field staff about confidentiality and data access related to immigration,” including the “perception that certain immigrant groups are unwelcome.”
They observed “increased rates of unusual respondent behaviors during pretesting and production surveys,” including “data falsification, item non-response, [and] break-offs.”
The flags were not merely raised by those responding to the surveys but also by those giving the surveys. As one interviewer put it: “Three years ago was so much easier to get respondents compared to now because of the government changes . . . and trust factors . . . . Three years ago I didn’t have problems with the immigration questions.”
And so a team at the Census Bureau conducted a brief qualitative study about the attitudes of respondents. The study reported that “[f]indings across languages [and] regions of the country, from both pretesting respondents and field staff[,] point to an unprecedented ground swell in confidentiality and data sharing concerns, particularly among immigrants or those who live with immigrants.”
The study noted that this “[m]ay present a barrier to participation in the 2020 Census,” and that it “[c]ould impact data quality and coverage for the 2020 Census.”
Litigation over the addition of the question to the decennial enumeration has revealed that the civil-service leadership of the Census Bureau—the scientists tasked with delivering a valid enumeration—articulated similarly serious concerns to the Department of Commerce’s political leadership. For example, a draft memorandum by John M. Abowd, Chief Scientist and Associate Director for Research and Methodology at the Census Bureau, details the likely impact of the attempt to collect citizenship information on the decennial.
It notes that adding a citizenship question to the decennial risks “[m]ajor potential quality and cost disruptions.”
Dr. Abowd understood that including a citizenship question on the decennial questionnaire would significantly depress the initial response rate.
He estimated that millions of dollars of follow-up would be necessary to attempt to compensate for this increased lack of response. Even after this follow-up, he thought that the question would yield hundreds of thousands of incorrect enumerations. And he stressed that this assessment represented a “lower bound” and a “conservative estimate.”
It is difficult to know exactly how many individuals would refuse in 2020 to be counted by a national enumeration questionnaire with a citizenship question. But Dr. Abowd’s “lower bound” estimates of impact—with hundreds of thousands of errors, even after substantial follow-up—seem unrealistically low. Specifically, these “lower bounds” assume (1) that rates of nonresponse for a citizenship question on the decennial enumeration would be no larger than nonresponse rates for the American Community Survey,
despite the dramatically increased prominence of the question on the decennial; (2) that nonresponse driven by the question should be expected only of households containing at least one noncitizen, despite fear within the broader community; (3) that the rates of nonresponse for a 2020 Census would be no larger than nonresponse rates in the 2010 Census, despite the substantial difference in overall political climate; and (4) that in-person follow-up visits will be able to cure a substantial amount of any initial nonresponse. There is considerable reason to doubt the validity of each of those four assumptions.
If any are inaccurate, the disruption in cost and quality will only rise. If more than one of these assumptions is inaccurate, the disruption compounds further.
Moreover, on a survey like the ACS, analysts can partially compensate for known nonresponse rates with advanced statistical techniques, to preserve the accuracy of the instrument. But the Census Bureau is largely restricted from doing so with respect to the decennial enumeration.
If the response to the decennial enumeration is broken, it cannot be repaired.
Even in 2016 and 2017, there were signs of a serious brush fire jeopardizing the accuracy of the enumeration, based on underfunding of Census operations and a climate fostering fear of interaction with government officials.
Many public and private actors were attempting to combat the fear as best they could.
But that was all before the Commerce Secretary’s decision to add a question on citizenship to the decennial enumeration, profoundly magnifying the prominence of the issue. This decision pours gasoline on the preexisting fire.
C. The Absence of Testing
It would be one thing if the Census Bureau (or if the Bureau’s professional staff had lost the confidence of the political leadership, some other wing of the Department of Commerce), having tested deployment of a potentially explosive topic on the decennial enumeration, had solid evidence that adding the question would cause no actual damage despite the widespread concern of those most active in the communities most affected. It is standard operating procedure for the Census Bureau to relentlessly and rigorously test, iteratively and over years, every change to the decennial enumeration—including changes much less controversial than this question.
Unfortunately, the government agencies normally responsible for this testing have offered no such assurances to the public. Instead, in his memorandum announcing the change, Secretary Ross flipped the standard burden of proof, citing the absence of reliable data about the question’s potential negative impact as a factor in favor of making the change.
It is impossible to overstate how much of a departure this represents from the way that the Census Bureau normally conducts business. In the movies, the Census Bureau is the sterile room where lab officials in goggles, latex gloves, and white booties work with impeccable care to prep the space probe or prepare the antidote. “We don’t know how much damage the bomb will do, but we’ll be able to figure it out after we drop it” is not how the Census Bureau normally executes its constitutional responsibility.
There has not been, and will not be, any opportunity for public testing of the citizenship question in an environment approximating the decennial enumeration before the 2020 enumeration is conducted.
The question, added in 2018, was simply inserted too late in the process. Testing for the 2020 enumeration began thirteen years earlier, in 2007, including real-world experiments in 2010 followed by further rigorous evaluation and retesting in the decade before liftoff.
The culmination of this relentless research process was the 2018 “End-to-End Census Test,” also known as the “dress rehearsal.”
This dress rehearsal, meant to be the final full test of the enumeration before execution of the 2020 Census, was planned, prepared, and begun before Secretary Ross made his decision. As a result, it contained no questions about citizenship in a decennial enumeration setting.
The question is now less than a year from exploding on the launchpad.
D. The Consequences of an Inadequate Enumeration
The most serious potential consequence of adding the citizenship question to the decennial enumeration is the accuracy of the enumeration. As discussed above, this is mostly driven by the concern that individuals will refuse to respond to the enumeration in this climate if a citizenship question is added.
There is an additional risk, however, that the results of those who do respond will be contaminated by fabrication. In assessing the likely quality of the data to be gained from asking about citizenship in the enumeration, the Census Bureau compared answers given by individual respondents on the ACS against administrative data
—and found that “nearly one third of [individuals listed as] noncitizens in the administrative data respond to the questionnaire indicating they are citizens.”
That is, about one-third of individuals listed as noncitizens in bureaucratic administrative data said in ACS responses that they were citizens.
It is possible that the administrative data are outdated and do not capture more recent naturalization, and it is possible that the administrative data are incorrect (or incorrectly linked to census responses). But it seems at least as likely that some of the respondents were falsely presenting themselves as citizens in their responses to the questionnaire. And again, there is reason to believe that the error rate triggered by citizenship questions on the ACS may be more pronounced in the more prominent context of the decennial enumeration.
These errors have several consequences. First is the simple default on a constitutional obligation. If burdening the decennial enumeration with an extra question on citizenship drives down the response rate or distorts the count in this political climate, the decision to include the question amounts to a dereliction of constitutional duty. The Census Bureau has no lawful authority to prioritize any goal over its constitutional mandate to ensure an “actual Enumeration” of every person in the country.
The second consequence is to our informational infrastructure. The enumeration not only provides a rough outline of the country’s population but also serves as the underlying basis for all of the other information collection that brings the picture to life. Government surveys like the American Community Survey depend on the enumeration to ensure that the surveyed populations contain a representative sample of the public; a skewed enumeration skews all of the government’s other statistical collection.
Private surveys and political polls, and the decisions they inform, further depend on the enumeration and the additional government surveys based on the enumeration.
If the enumeration is off, it will skew policy and business decisions until 2030. We are less able to confront challenges and seize opportunities when the basic facts and figures at the core of our shared understanding are simply incorrect.
The third consequence is for political representation and funding. The enumeration drives the apportionment of congressional districts; redistricting for federal, state, and local districts of all kinds; and the distribution of billions of dollars in government grants tied by formula to population.
Communities that are undercounted lose political voice and substantial government aid.
The nature of this loss, however, has substantial ripple effects. When vulnerable populations do not respond to the Census, it is not just the vulnerable populations who suffer. Everyone in an area with an undercount loses clout and cash.
Immigrant farmworkers lose—and so do the rural agricultural communities dependent on those farmworkers. Urban minorities lose—and so do the suburbs that depend on those cities’ economic engines. Border communities lose—and so do those who live in or trade with those border communities, including members of the border patrol. We are firmly tethered to each other by the enumeration.
Indeed, some of the most visible effects will be statewide.
Congressional representation and federal budget dollars are both finite resources with allocations driven by the enumeration, which means that states compete with each other for these resources based on the Census population count. But in this competition, with the citizenship question skewing real results, it is not the absolute number of vulnerable people that matters most, nor the growth of the population, nor even the demographic distribution of that growth. Among large, swiftly growing states where the scale creates serious leverage, what matters most in the competition for resources is the comparative level of government distrust. If minorities in Texas feel less safe than minorities in California and respond to the decennial census at lesser rates, Texas loses power and funding to California. And vice versa.
This comparative impact is worth repeating, if only because it may appear to conflict with the conventional wisdom. Texas is America’s most rapidly growing state.
If the Census count is accurate, most projections suggest that Texas will accrue billions of dollars in additional federal cash driven by the Census count.
Similarly, if the Census count is accurate, most projections suggest that Texas will gain an extra three congressional seats—and given recent electoral patterns, those seats are likely to be drawn by Republican legislators.
Like most other growing states, Texas’s population boom has been fueled by growth in historically vulnerable minority communities. Approximately 55% of Texans were racial and ethnic minorities in 2010, and projections from past growth patterns indicate that 59.1% of Texans are likely to be racial and ethnic minorities in 2020.
Based on the local climate, if those minorities are substantially less likely to complete the decennial enumeration than are residents of other states, those funds and those seats vanish. And they vanish for all Texans, to be picked up by states where the population is less afraid.
The most swiftly growing big states are, in order, Texas, Florida, California, Arizona, North Carolina, Washington, Georgia, and Colorado.
Some of these states were already feverishly working to bolster Census response before the Secretary’s decision to include a question on citizenship.
They will likely redouble their outreach now.
Some states may be less proactive. If adding a citizenship question to the decennial enumeration is likely to depress participation, the jurisdictions least responsive to their minority communities may have the most to lose.
II. The Ostensible Justification for the Citizenship Question
None of the tumult described above is necessary. Secretary Ross has claimed that the decision was motivated by the request of the Department of Justice;
the Department of Justice has claimed that it needs a citizenship question on the decennial enumeration in order to better enforce the Voting Rights Act (VRA).
But there is substantial reason to believe that these claims are pretext.
I had the privilege of serving in the Civil Rights Division of the Department of Justice, supporting and supervising the Division’s voting rights docket, among other areas. I do not believe that the DOJ during my tenure was unduly shy about bringing VRA cases when the facts and the law indicated a violation, and I do not believe that we were unduly shy about asking for additional legal or evidentiary authority when that additional authority would enhance our ability to enforce civil rights law.
Despite a deep commitment to enforcing the VRA, we never requested that the decennial enumeration include a question relating to citizenship. Nor had the Civil Rights Division of any Justice Department, under any administration, for the previous fifty-three years—that is, for the entire lifespan of the VRA.
Similarly, consider the position of civil rights groups most intimately engaged in extensive private enforcement of the VRA and most fiercely advocating for vigorous public enforcement of the Act. Each and every one has expressed vigorous opposition to the Commerce Secretary’s decision to include a question related to citizenship on the decennial enumeration in this political climate.
If the information were really necessary to enforce the VRA, this unified opposition by the private organizations most frequently litigating cases enforcing the VRA would be exceedingly odd.
There are two main reasons for the absence of pre-2017 clamor to place a citizenship question on the decennial enumeration questionnaire in order to enforce the VRA. First, since the VRA was enacted in 1965, existing survey data on citizenship—originally from the “long form” of the Census and now from the successor American Community Survey—have been largely sufficient to bring and win VRA cases. And second, for any additional data to be incrementally useful as an enforcement tool, they must be not only more precise, but more accurate. The Census Bureau’s action is not likely to meet this basic standard.
A. Citizenship Data and VRA Enforcement
1. The Use of Citizenship Data. — There are three main ways in which citizenship data are relevant in enforcing the VRA. These arise primarily in the redistricting context, when evaluating vote dilution claims.
First, before a redistricting plan or at-large structure can be said to dilute electoral opportunity on the basis of race or language-minority status, the affected communities must prove that they could exercise effective electoral opportunity with districts drawn in a different fashion.
In the name of litigation efficiency and administrability, the Supreme Court has set a bright-line threshold for this standard: Plaintiffs must show that they could constitute more than half of the electorate in a district-sized population.
This showing, in turn, requires information about the electorate in a given area, by race or language-minority status—and the most readily available such data are census data about the citizen voting-age population (CVAP).
Second, before a redistricting plan or at-large structure can be said to dilute electoral opportunity on the basis of race or language-minority status, the affected communities must prove that they are comparatively unified, and that other voters in the area are also sufficiently cohesive to deny the affected groups equitable electoral opportunity most of the time.
That is, plaintiffs must show that voting in the area is racially polarized.
Because no cast ballot, on its own, is identified by race or language-minority status, researchers must impute electoral preferences to groups using several well-established methods of inference from the ecological population characteristics of voters within each precinct.
These assessments are more accurate when the population characteristics more closely mirror the active electorate—and in some states, the most readily available such data are often data, by race or language-minority status, about the precinct’s CVAP.
Finally, if plaintiffs can establish a violation of the VRA based on vote dilution, that violation must be remedied by implementing a system in which race or language-minority groups have an equitable opportunity to elect candidates of their choice.
Testing whether the remedy will actually provide an equitable electoral opportunity requires an assessment of the local electorate and local voting patterns by race and ethnicity. As above, in many states, the most readily available such data are usually derived from, or incorporate, data concerning the CVAP of the precinct, by race or language-minority status.
In each of these three areas, Census-based information about citizenship rates has—for the entire history of the VRA—come from a survey of a representative American sample.
First, it came from the Census “long form,” then from the American Community Survey.
Like any information from a survey, these data are not perfectly precise. First, because the most accurate ACS results are aggregated over a five-year span, the results present a rolling average rather than a count on a given day. For populations manifesting consistent growth (or consistent decline), ACS results will lag behind the population’s present value.
Second, while enumeration data are released at the level of a census “block,” ACS survey data are released only in aggregate “block groups”; it is difficult to assess ACS data in geographies smaller than an aggregate group of multiple census blocks.
Third, because the ACS is a survey of a sample, it arrives with an associated margin of error.
The margin of error is larger in smaller geographies and for shorter time periods, and smaller in larger geographies and for longer time compilations.
But for the last fifty-three years, when Census-based data on citizenship have been necessary at all, the survey estimates have been sufficient for enforcing the VRA.
Estimates of the citizen voting-age population are usually sufficient because each VRA calculation using these data is itself an estimate. For example, VRA plaintiffs must show that the relevant racial or language-minority communities could constitute more than half of the electorate in a district-sized population. But “district-sized” is a range, rather than a point: The Supreme Court has repeatedly held that district sizes may vary.
Given the permissible range of district size, the fact that information concerning the relevant size of the minority population may also represent a range—a point estimate along with a margin of error—is rarely of concern.
Similarly, both the extent of racially polarized voting and the effectiveness of any particular remedy involve assessments of the electoral strength and cohesion of relevant racial or language minorities. But these evaluations involve patterns, not points. The goal is not to predict the precise vote count in a future election based on ironclad certainty about each individual’s anticipated turnout likelihood and race-based voting preferences. Instead, the purpose of the analysis is to determine whether past voting behaviors generally indicate that racial or language minority communities would vote similarly most of the time, and whether they would be likely presented with effective equitable electoral opportunity more often than not.
If the assessments of district size above contemplate a range, these assessments of voting strength add estimates and trends, relying on multiple past elections to anticipate likely approximate future behavior. These qualitative legal assessments must rely on rigorous analysis,
but to the extent they are informed by quantitative data, they tolerate a degree of imprecision.
Where citizenship data from the ACS have been used, they have largely been sufficient.
I reviewed eighteen years of the most recent cases brought by the Department of Justice to enforce the VRA against claimed vote dilution (where citizenship data have been most relevant), across both Republican and Democratic administrations, spanning two decades’ worth of “long form” and ACS data. To the best of my knowledge, not one of these cases represents an instance in which a decennial enumeration would have enabled enforcement that the existing survey data on citizenship did not permit.
Indeed, not one of these cases has realistically been close to the line.
Adding private litigation expands the sample set, but even in that context, it is exceedingly rare for plaintiffs enforcing the VRA to run into trouble based on the adequacy of the Census’s survey data, in any way that asking a citizenship question on the decennial enumeration might possibly cure.
I am familiar with only one such case. And rather than demonstrating a need for a citizenship question on the decennial enumeration, it instead demonstrates that such a step is unnecessary.
The case in question is Fabela v. City of Farmers Branch.
In 2010, Latino plaintiffs claimed that the at-large election system in Farmers Branch, Texas, unlawfully diluted their right to vote. In furtherance of that VRA claim, they presented evidence, including data aggregated from the ACS, that Latino citizens constituted a majority of the voting-age citizens in four different illustrative districts.
In a thorough opinion, the court reviewed some of the limitations of the ACS, including the limitations above.
And the court recognized that ACS data offered some challenges in geographies as small as illustrative districts within Farmers Branch, which split “block groups” and where ACS estimates arrive with a margin of error.
Accurate data from the decennial enumeration would have offered less inherent uncertainty. But the court also recognized that precedent permitted flexibility in the data available to prove a VRA violation.
And it specifically noted the availability of alternative evidence to establish the size of the Latino electorate: Plaintiffs also presented data directly from the voter files, tallying registered voters with surnames separately identified by the Census as of Latino or Hispanic origin (also known as “SSRV” data).
In that case, said the court, “the SSRV data strongly corroborate the accuracy of the Hispanic CVAP estimates [from the ACS].”
And so the court found, with the combination of ACS data and SSRV information, that plaintiffs had met their burden of proving by a preponderance of the evidence that the Latino electorate in the area was sufficiently sizable to comprise a majority for purposes of the VRA threshold.
Indeed, in many smaller jurisdictions, litigators regularly deploy similar analysis based on the likely racial or ethnic identity of registered voters’ names or surnames—sometimes on its own, and sometimes in concert with Census-based survey data—in order to help enforce the VRA. The Department of Justice has used this sort of information in its own VRA litigation.
It is a practice directly endorsed in the legislative history of the VRA itself.
Analysis of minority electorate size by the names or surnames of registered voters is also not perfectly exact. But particularly in concert with ACS survey data, it has been sufficient. The ostensible need for citizenship data on the decennial enumeration does not arise from any meaningful limitations revealed by past litigation.
2. “Precision,” but Inaccuracy. — Existing data have been largely sufficient to enforce the VRA. It is, of course, possible that there exists a reservoir of marginal potential enforcement actions, just outside of the searchlight of extant litigation, for which ACS survey data are not up to the task, and for which other means of establishing the electorate (like SSRV data) are similarly inadequate. Yet even in these cases, it is exceedingly unlikely that adding a question on citizenship to the decennial enumeration in this climate would improve any entity’s ability to enforce the VRA.
These theoretical cases would all depend on the limitations of the ACS as a survey. First, because of the limited ACS sample, ACS data cover block groups rather than individual blocks: They represent molecules, rather than atoms.
Particularly in smaller jurisdictions, the ability to draw an effective remedial district might depend on lines drawn to include certain individual blocks and excise others, relying on distinctions more finely calibrated than ACS data coverage, as a fine-tipped pen permits more precision than a blunt Sharpie. Second, because the ACS is a survey, it has a margin of error. In hamlets with small minority populations, that margin of error might be fairly large, such that it is not clear whether the minority population of interest constitutes 40% or 60% of the relevant CVAP, or somewhere in between.
And even in large cities with large minority populations, a community may be just on the cusp of the requisite size, such that it is not clear whether the minority population of interest constitutes 49.9% or 50.1% of the relevant CVAP. As described above, the fact that the test for district size is more about a range than a point diminishes the likelihood that these margins of error prove determinative, but it is at least theoretically possible that the margin of error would materially impact a determination at the extreme lower bound of a district-sized range.
In these three instances, a jurisdiction could conceivably be liable at the same time that litigants lacked the data adequate to bring an enforcement proceeding.
Adding a question to the decennial enumeration may give the illusion of increased precision and greater statistical power. The enumeration is a household-by-household count, rather than a survey, and so it arrives without a margin of error derived from statistical sampling. But this does not mean that the enumeration is error-free. To the contrary, even with imputation, systematic errors in the enumeration are often substantial.
Adding a citizenship question will only increase the error. In this climate, the illusion of precision likely arrives at the cost of significant accuracy.
That inaccuracy may take two forms. First, vulnerable communities—including minority communities seeking protection from the VRA—may decline to respond to the enumeration entirely.
This is the most significant risk, and the one that, contrary to the claims of the Administration, wreaks the most substantial havoc on the enforcement of the VRA in practice. The very minority communities most likely to need VRA protection are already chronically undercounted.
With the addition of a citizenship question, they will be that much more likely to go untallied, which means that the enumeration is likely to systematically undercount precisely the people who most need the VRA. If the problem with the ACS survey is that it occasionally leaves doubt whether a population is sufficiently sizable to merit VRA protection, asking the question on the decennial enumeration may drive down participation so that it appears certain that the population is not sufficiently sizable to merit VRA protection. And because of the undercount, that certainty will be false. The communities on the margin, on whose ostensible behalf the information is sought in the enumeration, will inaccurately appear to be pushed below the threshold for enforcement.
The second potential inaccuracy runs in the other direction but also works to the detriment of minority communities. If vulnerable communities are not sufficiently scared to shut the door on the enumeration, they may be sufficiently scared to lie. That is, noncitizens fearing the repercussions of their answers may respond to the enumeration by claiming to be citizens.
There is no way to know whether this error will be larger or smaller than the nonresponse error, but there is also no reason to expect that they will systematically cancel each other out in the same geographic area. In some jurisdictions, false answers may exaggerate the size of the minority electorate. As a result, a remedial district will be banking on the perceived muscle of an electorate that is actually smaller than it appears—and which, inevitably, will fail to live up to turnout expectations. VRA enforcement ostensibly aimed at electoral opportunity would lead to districts designed to leave that opportunity just out of reach, given the real facts on the ground.
Absent miraculous statistical happenstance,
adding the citizenship question to the decennial enumeration in this climate is likely to lead to either significant undercount or overcount of the true Latino citizen population of jurisdictions like Farmers Branch, and other immigration-sensitive minority communities on the cusp of VRA protection. Any case currently out of the reach of enforcement due to ACS data would likely be placed even further out of the reach of meaningful remedy due to predictable errors in data returned by the decennial enumeration. An ostensible performance-enhancing drug that cripples the patient does not enhance performance.
B. Evidence of Pretext
The analysis above leaves plentiful reason to question the legitimacy of the proffered rationale for the addition of a citizenship question to the decennial enumeration. The adverse effect is untested but potentially huge, and the demonstrated need is virtually nonexistent when it is not actively counterproductive. Census Bureau career staff even noted that if citizenship information were required for more potent enforcement of the VRA, the Census Bureau could provide the necessary detail by consulting administrative records, avoiding the substantial detrimental impact of placing the question on the decennial enumeration questionnaire.
That suggestion was cast aside.
Something didn’t seem to add up.
Litigation discovery has revealed substantial further reason to believe that the Department of Justice’s request to collect citizenship data in the decennial enumeration for purposes of VRA enforcement was pretext.
As just one example: More than seven months before the DOJ requested decennial collection of citizenship information, Secretary Ross discussed in a May 2, 2017, email his “months old request that we include the citizenship question.”
Earl Comstock, his Director of the Office of Policy and Strategic Planning at Commerce, responded that “we will get that in place. . . . We need to work with Justice to get them to request that citizenship be added back as a census question . . . . I will arrange a meeting with DoJ staff this week to discuss.”
It is difficult to read this exchange without concluding that the Secretary had already developed a desire to include the citizenship question in the decennial enumeration, several months before May 2017. And it is difficult to read this exchange without concluding that the Department of Justice’s request, nine months later, was designed to accommodate this preexisting desire.
III. The Real Rationale(s)?
If Secretary Ross’s stated rationale for adding the citizenship question appears inadequate, it is worth considering whether there are more plausible alternatives that point to additional consequences well beyond the VRA. We may never know the real reason. But adding a question to the decennial enumeration might serve at least four purposes, or several in combination.
A. Statistics on Immigration
First, it may be that the question was added to the decennial enumeration precisely in order to achieve the likely effects explored above. In 1976, Justice Stevens recognized that “normally[,] the actor is presumed to have intended the natural consequences of his deeds.”
His maxim may no longer be a sufficient standard of the evidence required to prove constitutionally illegitimate intent,
but it is still a reasonably good guide to human behavior.
Adding a question about citizenship to the decennial enumeration in this climate is likely to depress participation, particularly but not exclusively among noncitizens. It is also likely to cause some noncitizens to state inaccurately that they are citizens. Both errors can be expected to substantially understate the number of noncitizens present in the country.
Given the prominence of immigration enforcement as a campaign issue for this Administration, and the degree to which the Administration has courted nativism, an artificially low noncitizen count may be a feature rather than a bug. Supporters of reducing the size of the immigrant population, lawfully present and unlawfully present alike, will be able to cite an undercount of noncitizens as evidence that noncitizen numbers are dwindling, and hence as evidence of an immigration policy deemed successful by their terms. The fact that the data are likely to be inaccurate will be unlikely to reduce the potency of the talking point.
B. Interstate Competition for Representation and Power
Second, it may be that the question was added to the decennial census to achieve the results above, but for a different underlying rationale. The decennial enumeration is the basis for apportioning congressional seats and Electoral College votes, and billions of dollars of federal funds allocated by statutory formula.
States with a larger undercount will receive fewer congressional seats, fewer Electoral College votes, and fewer federal funds; in states that are themselves larger and more swiftly growing, that effect will be exaggerated.
As explained above, the competition for interstate representation and funding is zero-sum, and so comparative undercount is more important than absolute undercount. If vulnerable Texan communities are more wary of the enumeration than vulnerable Californians, Texas—all Texans—suffer more in the interstate competition.
Ultimately, this impact may harm states controlled by the Trump Administration’s fellow Republican partisans most.
Specifically, many of the states most likely to forego additional congressional seats if significant portions of the population do not respond to the enumeration are states in which it is likely that entities controlled by the Republican party will be responsible for redrawing the congressional lines in 2021. Whether that is widely understood—or whether the other consequences discussed above and below are perceived to compensate for that impact—is unclear.
C. Intrastate Competition for Representation and Power
Similarly, it may be that the errors were desired, but for their impact on the intrastate rather than interstate allocation of political power and funding. The Constitution requires federal, state, and most local legislative districts to be of substantially similar size.
After the decennial enumeration reveals population shifts, state and local governments will recalibrate their districts to achieve equality based on the latest figures, and reallocate their dollars to where the people live.
If vulnerable populations refuse to respond to the enumeration, and those refusals are not evenly geographically dispersed, they will lose political power (and funding) as federal, state, and local districts are divvied up within state lines.
Funding will appear to be distributed to where the people are, but the dollars will be stretched far more thinly in areas of a substantial undercount. And districts will appear to embrace similar numbers of people, but a substantial undercount will mean that some districts are in fact far more populous than others, forcing more residents to compete for representation than similarly situated residents elsewhere. While the Constitution tolerates some size disparity among districts, larger disparities amount to constitutional harm.
If the undercount is sufficiently severe, the inaccurate enumeration may be masking what is in fact unconstitutional malapportionment.
The intrastate deprivation of political power, in particular, will likely have predictable partisan impact depending on the local political demography—and if the desire for partisan punishment is indeed motivating the addition of the citizenship question to the enumeration questionnaire, that has serious constitutional ramifications.
Those who live in the areas of an undercount will see their political power wane.
But to acknowledge that the local partisan ramifications of an undercount are predictable is not to say that they will always match conventional wisdom. Undercounts will not be confined merely to noncitizens, and the impacts of undercounts will not be confined merely to those households undercounted. And though Democrats in urban areas with a significant undercount would see a diffusion of power, for example, so too may Republicans in agricultural communities dependent on immigrant labor.
D. Redistricting Population Base
The rationales above all hinge on errors in the enumeration that the citizenship question will likely significantly aggravate. A final alternative rationale for placing the citizenship question on the decennial does not depend on this potential disruption to the enumeration. Instead, it is based on a desire to fundamentally rewrite the terms of American representation.
As mentioned above, the Constitution requires districts to be of substantially similar size.
This mandate was imposed in a series of cases deemed the “reapportionment revolution”
—the cases Chief Justice Earl Warren famously branded “the most important” of his tenure on the Court.
They recognized fundamental equality interests in the drawing of political districts.
But they left some ambiguity in determining equality of what.
When the Constitution requires the apportionment of congressional seats based on the “whole number of persons in each state,”
that is a standard unambiguously rooted in the representation of all persons, including the virtual representation of those who may not vote.
It implies that congressional representatives have the authority (and perhaps obligation) to represent all of their constituents; that all individuals within a polity deserve to be represented, and represented proportionate to their numerosity; that the wishes of the minority of the governed should not prevail over the wishes of the majority; and that constituents’ various concerns have roughly equal claims on the representatives’ time and attention from district to district, such that 50,000 individuals aren’t jostling for one representative’s efforts in one state while 500,000 individuals seek face time from one representative in the state next door.
In the first of the substantive cases concerning district size, the Court determined that congressional redistricting must maintain the same principle as congressional apportionment.
Following the allocation of congressional districts among states, the construction of congressional districts within states must ensure that each district contains a roughly equal number of people.
For state and municipal legislative districts, the law is admittedly more muddled.
The cases refer to equality of representation, achieved through equalizing total population, following the model for congressional apportionment and the model embodied in the constitutions of most states.
But the cases also refer—sometimes in the same sentence
—to the need to maintain equality among citizens
and an equally weighted vote.
Despite their conflation, these are distinct concepts,
and underjustified to the extent they have any meaning at all.
Moreover, the doctrine reveals internal contradiction as well as imprecision: Just a few sentences after suggesting that states might be free to choose voter population as a basis for district equality, the Court explicitly held that the number of registered voters in each district would not suffice as a permissible apportionment base.
The Court’s theoretical conception of constitutional requirements for equality of representation in structures of state government, or of the permission that the Constitution grants to state governments in this arena, is hazy at best.
At the moment, per the Supreme Court’s apparent holding in Reynolds v. Sims, each state draws state legislative lines to equalize total population.
In 2014, a group of plaintiffs in Texas sued under the Equal Protection Clause, in an attempt to force the state to equalize the number of voters in each district.
In the course of that litigation, amici defending the propriety of the total population base urged that the existing data—including ACS data—were insufficient for equalizing the number of voters in each district. They argued that, even if the goal were desirable, ACS data were not up to the task.
The purported precision of the decennial enumeration, by contrast, made equalizing total population feasible.
And so it may be that adding a citizenship question to the decennial census becomes a vehicle for a block-by-block dataset of citizen population, ostensibly suitable for a novel redistricting population base. Some states might seek to depart from their historic norm and use this dataset to draw their state legislative districts with equal numbers of citizens. Nebraska law may already contain such a provision, unenforced for years, and still of uncertain legality given the Court precedent described above.
A Missouri state constitutional amendment along similar lines passed the state House in 2018.
And Texas’s own litigation position in Evenwel v. Abbott was that although it had not drawn districts to equalize citizen population, it might, and it could.
It is not clear whether such a choice is available under federal law. Evenwel refrained from holding that total population is the only permissible population base,
in part because to do so would have been a substantial expansion of the question presented. The issue on the table was whether challengers could force Texas to depart from a total population base against the state’s wishes, not whether Texas was free to choose a different base on its own.
But the case—and its predecessors—contains some strong language hinting toward the singular propriety of an equal-representation theory for state legislative redistricting.
For example, the Court firmly declared that “[a]s the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents.”
If that is true,
it necessarily implies that equality of representation in the districting context depends on total population. In contrast, drawing districts based on equal numbers of citizens depends on the legitimacy of exclusion.
It hinges upon a theory that though noncitizens present in a state—including noncitizens present at the express invitation of the federal government—are subject to the state’s regulation and taxation, they may be deprived of representation in state government.
It is also important to note that if the Supreme Court’s case law in this area seems to vacillate between theories of equality of the governed based on representation of all people and theories of equality of the political community based on representation of voters, a redistricting base of citizens accomplishes neither. Citizen populations contain large numbers of people who may not or will not vote in the district, including temporary sojourners (including some members of the military), children, individuals disenfranchised by conviction, individuals ineligible by means of mental capacity, and people who do not cast valid ballots, either by choice or by happenstance.
Even if the Constitution does not prevent a jurisdiction from choosing a redistricting base other than total population for its state legislature, the VRA might. The VRA prohibits dilution of the right to vote on the basis of race or language-minority status.
A jurisdiction with a troubled history of discrimination or danger signs of present discrimination may not select freely from among multiple electoral options if one or more of those options leads to dilution of opportunities for minorities to effectively exercise the franchise.
A state’s choice of a redistricting population base should be no different in this regard from any other election-related choice. And in many jurisdictions with troubled histories of race relations, it is likely that excluding all noncitizens from the redistricting base will cause district sizes to swell in areas with significant minority populations; as district sizes grow, minority electoral opportunity will tend to shrink. The VRA may well constrain that choice.
Finally, it is worth noting that courts and commentators have long observed the potential for manipulation in choosing a redistricting base other than total population. In Burns v. Richardson, for example, the Court confronted Hawaii’s system of equalizing the number of registered voters in each district.
The Court noted not only that such a base may fluctuate substantially over the course of a decade but that incumbents would have the incentive to drive fluctuation for political advantage: “[A] registered voter or actual voter basis . . . is thus susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process . . . .”
The locus for manipulation of a citizen-population base is different, but perhaps no less notable. First, there is the decision to use a citizen-population base in the first instance, and the likelihood that such a decision would be based more on the potential for partisan gain than on deep representational theory. And second, there is the construction of the citizenship base: Federal government actors control the naturalization process, and in the pursuit of political advantage might improperly increase or decrease the pace of naturalization in advance of a decennial census year to put another thumb on the scale of a state legislative map.
It is, regrettably, not implausible to believe that an immigration process could be used as the tool for partisan electoral gain.
Each of the ends discussed in Part III above appears more likely to be furthered by the addition of a citizenship question to the decennial enumeration questionnaire than will vigorous enforcement of the VRA. As for the official justification put forward in support of the proposal, the analysis above indicates that the eleventh-hour decision to add a citizenship question to the decennial enumeration is both unnecessary and counterproductive. And as bipartisan former Census Bureau officials have explained, in this climate, the decision poses a substantial risk to the Bureau’s ability to undertake its one constitutionally mandated duty. A distorted enumeration will have profound and lingering consequences for funding and political power. Indeed, that might well have been the point.