The Supreme Court ruled Thursday that the Commerce Department has the authority to add a question to the 2020 census asking about the citizenship status of respondents, but it needs a better reason to do so. In a complex decision, the justices found the explanations provided by the Trump administration for adding the question—that it needed the information to protect voting rights—simply did not hold water. By this reading, the citizenship question is off the 2020 census… for now.
But the Court did not rule out that Commerce could eventually provide a believable rationale for their unprecedented addition—it will be up to lower courts to adjudicate their justifications. The issue now is a deadline, originally set by the administration, for printing the census forms. That was supposed to be at the end of this month. Whether the Commerce Department, faced with an unfavorable decision, will stick to its own timeline remains to be seen. (After the Court ruling, Trump tweeted that he asked lawyers to look into delaying the constitutionally mandated count altogether.)
If the current administration decides they have more time—and some have said printing could get pushed as late as October—the Supreme Court decision does not finally resolve the fate of the question. Trump officials could concoct a way to win the favor in the courts and seek an emergency ruling later this summer. With earlier decisions from the Roberts Court in Shelby County v. Holder and Citizens United v. FEC, it is hard to believe there couldn’t be a further battering of the safeguards of U.S. democracy. Permitting the politicization of the census will, in no uncertain terms, skew the next ten years of politics in Washington, D.C. and statehouses across the country—much in the same way GOP gerrymandering in the last redistricting cycle defined this past decade.
Right now, the findings of experts and lower courts hold sway over the claims of the Trump administration. The standard bearer of a political party hell-bent on restricting voting rights is not seriously hoping a citizenship question will help it strengthen the 1965 Voting Rights Act (VRA).
Indeed, as Federal District Court Judge Jesse Furman wrote earlier in the year, Commerce Secretary Wilbur Ross, who oversees the census, had “no apparent interest in promoting more robust enforcement of the VRA.” And, as reporter Ari Berman noted, the late GOP operative, Thomas Hofeller—who likely had a major role in the strategy behind the addition of the citizenship question—produced research which “concluded that [the citizenship question] would harm the minority groups that the VRA was designed to protect.”
Far from safeguarding voting rights, the citizenship question would instead lead to a drastic undercount of marginalized communities.
The Urban Institute projects that if the 2020 census included the question, it could be the largest undercount since 1990, with 3.68 percent of African Americans and 3.57 percent of Latinx likely to be unaccounted for in the national tallies. (Significant undercounts of Asians, Pacific Islanders, American Indians, and Alaska Natives, are also expected). A Harvard study estimated that “asking about citizenship will reduce the number of Hispanics reported in the 2010 census by approximately 6.07 million, or around 12.03 percent of the 2010 Hispanic population.”
Even the Census Bureau, in new research published earlier this month, suggests the citizenship question will depress participation of households with non-citizens* up to an astounding 8 percent.
Such skewed data collection will distort congressional elections in the years ahead. The census determines decennial reapportionment (i.e. which states will gain or lose congressional seats according to population change), and an undercount could shrink the congressional delegations of California, Florida, Texas, and Arizona—all states with rapid demographic shifts. These changes in the count will disproportionately affect Democrats, especially if the GOP engages in additional, aggressive partisan gerrymandering in 2021.
Equally significant, the census determines the allocation of federal funds. States that suffer from an undercount will receive a smaller portion of the hundreds of billions of dollars that the federal government distributes to states. This will drastically misallocate necessary funding for services such as public health and education, harming those most vulnerable.
All these deleterious effects are a feature—not a bug—of the citizenship question. The goal, as documents written by Hofeller explicitly revealed, is to increase white political power. This is most apparent in how the citizenship question could—and almost certainly would—be used in the next round of gerrymandering.
“The citizenship question is about fundamentally reimagining the way the GOP can redistrict state legislatures,” explains David Daley, author of Ratf**ked: Why Your Vote Doesn’t Count and an expert on gerrymandering.
“It’s clear from the documents that Thomas Hofeller kept. The goal is to draw districts based on citizen voting-age population, and not total population, which would skew political power—or, more accurately, rig the maps—for decades to come.”
According to Daley, by not counting noncitizens and those under 18, the political weight of urban areas will drastically diminish, allowing for districts far more rural, white, and, plainly, Republican. Hofeller admitted in a 2015 memo that the use of citizen voting-age population “would be advantageous to Republicans and non-Hispanic whites.” Unsurprisingly, some Republican state lawmakers have already expressed interest in using citizenship data for the upcoming redistricting cycle.
Nevertheless, there remain avenues to fight back, no matter the final resolution of the citizenship question debate.
Countless activists on the ground have spent the past few years laying the groundwork to effectively mobilize communities for census participation. Beth Huang, executive director of Massachusetts Voter Table, a Massachusetts-based organization currently working to ensure an accurate census count, is one such advocate.
Huang has been working over the past year with a coalition of groups under the umbrella “Mass Counts” to prepare nonprofits for the upcoming census. According to her, nonprofits—ranging from political advocacy to direct service providers—are the main links to communities across the commonwealth and are therefore the most effective partners to maximize participation in the census. The efforts of Mass Counts are replicated as part of a national network of the Leadership Conference for Civil Rights’ States Count and State Voices.
“Our partner organizations are nonprofits that work with people who are historically undercounted in every decennial census,” Huang explained. “And we need to ensure these nonprofits have a deep understanding of why the census matters for their constituencies,” especially regarding the distribution of federal resources.
Huang and Mass Counts have long planned for a disappointing High Court ruling; today’s mixed message doesn’t alter the fundamental plan. The coalition will push ahead in trying to get the maximum number of residents to fill out the census form and make clear that even if one chooses to skip any possible citizenship question, the census bureau will still accept the form. (Federal law gives the government the ability to fine and follow up in the case of an incomplete form, though, which is a source of concern).
“We now need to live in the contradiction,” Huang noted. “Participate while acknowledging that people are rightfully distrustful of the federal government for many reasons.”
Apart from working with nonprofits, Mass Counts will work to reassure residents that strong guidelines exist to protect against the use of an individual’s census data. Given the administration’s attempt to disregard administrative law in the attempt to add the census question, however, there is ample reason to be fearful that these protections may not be enough. Massachusetts advocates held a press conference Thursday with Massachusetts Attorney General Maura Healey to reassure the public that any misuse of individual census data will be met with aggressive litigation.
These efforts to ensure an accurate count provide a ray of hope, but, no matter the final decision on the 2020 form, they are woefully underfunded for the task at hand. Much more money will have to be routed to census-focused endeavors to maintain a truly representational democracy over the next decade. If the wealthy liberal donor class really wants to effect change, it is here that targeted investments can make a huge difference.
Unfortunately, whether or not a citizenship question is ultimately added, little can be done to prevent the use of citizenship voting-age population data (some of which still exists outside the census) in state-level redistricting. On this front, the Democrats’ only choice is to take back at least one state legislative chamber in key GOP-held states. Given 2011 Republican gerrymanders, this will be extremely difficult. Where applicable, gubernatorial candidates who pledge to reject any map drawn with citizen voting-age population will have to be elected, too.
Whatever the future holds, Huang is adamant: “We can fight back.” The only question is whether we collectively have the political will to do so. “SCOTUS rejected the disingenuous reason for including the citizenship question to enforce voting rights,” Huang said. “The citizenship question is blocked for now, and we need to keep working to ensure that the question stays off and that everyone counts.”
The very principle of “one person, one vote” is at stake.
*This story has been updated to clarify where the Census Bureau expects to see less participation if a citizenship question is included.