ONLY six sentences into America’s constitution, the founders instructed Congress to conduct, within three years of its first meeting, an “actual enumeration” of people living in each state as well as additional headcounts “within every subsequent term of ten years”. But the decennial census involves much more than raw numbers. A state’s share of the national population determines how many seats in the House of Representatives—and how many electoral votes in presidential elections—it will control. It also dictates how $650bn in federal funds for services like education, road-building and disaster relief are divvied up among states and localities.
Every decade, the census brings angst for states that fear they may lose congressional representation and excitement for those hoping to pick up a seat or two. But the looming 2020 census (America’s 24th) has caused particular concern, over what Steven Choi of the New York Immigration Coalition, an umbrella immigrant-rights organisation, calls a “more than fishy” decision to include a new question: “Is this person a citizen of the United States?”
It has been 70 years since a query regarding citizenship appeared on the census. Now Wilbur Ross, the secretary of commerce, faces six consolidated lawsuits—two each in California, Maryland and New York—over his announcement in March this year that he intends to type it back in. Eighteen states and the District of Columbia—together with 15 cities, several counties and immigrant-aid groups including the New York Immigration Coalition—are suing Mr Ross and the Commerce Department for flouting proper rule-changing procedures, discriminating against immigrants and attempting to scare them away from participating in the census. The trial, which began on November 5th in New York City, has been long on rather arcane details of survey design and methodology. But testimony from former Census Bureau officials, scholars and statisticians suggests something quite clear: Mr Ross’s plan sprang not from a genuine need for citizenship data but from political discussions with White House officials including noted anti-immigrant figures like Steve Bannon. The inclusion of the question deviates from the normal practice of field-testing questions extensively, for years, before adding them to the census and is likely to result in a significant undercount of people in immigrant communities.
On November 9th, John Thompson, who spent more than 30 years at the Census Bureau and was its director from 2013 to 2017, took the stand to explain that immigrants’ “lack of trust” in government makes them more difficult to survey. Being asked about their citizenship, he noted, would probably make them even more circumspect. In a court filing, Mr Thompson called Mr Ross’s decision “unprecedented” and “more than unusual”. Referring to evidence that Mr Ross approached the Department of Justice (DoJ) to implore the agency to suggest the change, Mr Thompson wrote, “I never observed a political official at the Department of Commerce solicit another federal agency to request that a specific question be added to the Decennial Census questionnaire”.
The purported reason for adding the question—which the array of plaintiffs argue is mere pretext—is to permit the DoJ to better enforce section 2 of the Voting Rights Act (VRA) prohibiting discriminatory treatment of minorities. This concern with the right to vote is rather out of character for the Trump administration, which has turned away from attempts to uphold the VRA while expending energy on a fight against purported, but phantom, voter fraud. In any case, citizenship data from the census is unnecessary for policing the right to vote. In a forthcoming article in the Columbia Law Review, Justin Levitt, a professor at Loyola Law School and former DoJ official, writes that data from the American Community Survey, a longer-form survey administered annually by the Census Bureau, provides all the data the government needs. After reviewing dozens of recent cases, Mr Levitt found none in which census data on citizenship would have given the DoJ a better grip on voting-rights violations.
Testifying on November 13th, John Abowd, chief scientist and an associate director for research and methodology at the Census Bureau, made some similar points. In a memo to Mr Ross in January, Mr Abowd wrote that the addition on a citizenship question would be costly and may “[harm] the quality of the census count”. He explained that “it is common for households to include persons with a variety of citizenship statuses”. Lawful permanent residents, also known as green-card holders, may be more wary of noting they are not citizens if members of their family are undocumented. Though individual census data is kept private for 72 years, respondents—especially minorities—worry about confidentiality. With approximately 42m immigrants living in America, and about quarter of those undocumented, the question could significantly reduce compliance.
Whichever side prevails in the case, an appeal to the Second Circuit Court of Appeals is quite likely, as is an eventual plea for the Supreme Court, which has already issued orders concerning contours of the district-court proceedings. Typically a rather slow-moving institution, the high court may have to accelerate its pace if it is to resolve whether citizenship appears on the census questionnaire: the forms must begin rolling out of the printers in June, a few weeks before the justices typically hand down the most contentious rulings of the term.