In 2002, I remember sitting in the U.S. Supreme Court chamber listening to Tom Lee — now a member of Utah’s Supreme Court — nimbly arguing that Utah was deprived of a House seat because the 2000 census was flawed.
Statistical models added more residents in North Carolina than in Utah, and left Utah 80 people short of getting an extra seat in the House of Representatives. The Constitution and Congress, Lee said, demand the census be an actual count of people living in the United States, not statistical projections.
It was a compelling argument, but ultimately one that fell flat and the justices ruled 8-1 that the executive branch has discretion in how to conduct the census. Utah lost, and should have, but with statistical modeling, the count was more accurate.
Now President Donald Trump is using that same flexibility in a way that will just as certainly result in a much less accurate census.
This week, the Trump administration said it would include a question asking if respondents are citizens.
It’s something that hasn’t been done for nearly 70 years, under both Democratic and Republican administrations.
The decision comes against the backdrop of justifiable fear in the immigrant community — through deportation sweeps, a travel ban targeting specific countries, the president’s condemnation of undocumented immigrant communities and his decision to rescind the Deferred Action for Childhood Arrivals program, exposing hundreds of thousands to potential deportation.
You can’t blame those immigrants, then, if they would refuse to answer the question or participate in the census altogether.
Former directors of the Census Bureau, who worked under both Republican and Democratic administrations, have warned in a letter obtained by The Washington Post that including the question could jeopardize the accuracy of the entire census.
“We strongly believe that adding an untested question on citizenship status at this late point in the decennial planning process would put the accuracy of the enumeration and success of the census in all communities at grave risk,” the former Census Bureau chiefs wrote.
Career officials at the Census Bureau also recommended not including the question, but Commerce Secretary Wilbur Ross ignored that advice and overruled them.
There’s an argument to be made that undocumented immigrants are not entitled to benefits from the federal government, things like Medicaid or food stamps, nor are they able to vote, and therefore we need to identify their numbers and remove them from the funding formulas that draw on census information.
But that’s not entirely true. Interstates, for example, don’t care about the legal status of people driving on them and neither do the federal funds used to help build the roads. The same is true of emergency rooms that are required to treat people regardless of status and receive federal support.
And schools are perhaps the best example. Does a student whose parents brought him into this country cost less to educate than a student born here, or even a student whose parents are undocumented but was born here and, therefore, is a citizen who by any argument should be counted?
Trump’s Justice Department says they need citizenship status to enforce the Voting Rights Act — something the department hasn’t seemed to be too interested in so far.
But it turns out the Census Bureau already has the data on how many non-citizens live in the United States, information it has been gathering for decades on another questionnaire, the American Communities Survey, and then extrapolating to the whole population.
So what’s really going on here?
It’s pretty apparent that Trump is once again trying to instill fear in the immigrant community and fuel the hatred some in his base have for anyone perceived to be foreign.
There’s a bonus, in that depressing the responses from already undercounted minority populations would mean Democrat-leaning states like California would receive fewer of the federal dollars that are allocated based on population formulas.
But more than that, it’s about politics, specifically, control of the House.
It already looks like Republicans are going to take a beating in the upcoming midterm elections and could suffer another major setback if the Supreme Court rules Republican gerrymanders in several states are unconstitutional.
If Trump can game the census to undercount immigrant communities it may shift seats from urban, Democratic areas to white conservative states, potentially tipping the balance of power in Republican’s favor.
California has already said it will sue over the question and other states are almost certain to join. It’s also possible that, if Democrats take control of Congress, they could pass a law forcing the removal of the question, but that seems unlikely.
All of this cuts against what the census is supposed to be. The founders required in the Constitution that the census count the “respective numbers” of people in the states each 10 years. The Fourteenth Amendment required apportionment of seats by “counting the whole number of persons in each State.”
It doesn’t make mention of citizenship because the goal was to count people. Rigging the count, whether out of malice or partisan gain, is a cynical ploy and undermines the entire purpose of the exercise.
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