The Citizenship Question
by Madison Levin
The Enumeration Clause of the Constitution specifies that the population be calculated by “adding to the whole Number of free Persons… three-fifths of all other Persons.” In light of the current census controversy, it is significant that racism was written into the United States Constitution and remains entrenched our democracy and our legal system today, long after the offensive three-fifths language was amended. At the center of the current census controversy is the fundamental question: Who has the right to be counted?
Being counted is not only about declaring, “I am here.” Census data determines the apportionment of representatives, the allocation of billions of dollars of federal funds for a myriad of programs, and the drawing of electoral districts. Undercounting a group of people decreases their political power and their access to resources. The consequences are severe and long lasting.
In March 2018, Secretary of Commerce Wilber Ross announced that, at the request of the Department of Justice (DOJ), he would include a citizenship question in the 2020 census. He stated at the time that the DOJ requested the question because the citizenship data collected would help enforce the Voting Rights Act, particularly the ban on denying minority voters single-member districts so they can elect their preferred candidates.
Several organizations, including the Census Bureau, predicted that including a citizenship question would lead to a decreased response rate from non-citizens and their families because they would fear the legal consequences if they disclosed their immigration status to government officials. Two groups of plaintiffs sued. First, cities and states on the grounds that they would be denied representation and federal funds if their population were undercounted. Second, non-governmental organizations on behalf of immigrant and minority communities on equal protection grounds. Both groups were consolidated in DOC v. New York when the Supreme Court agreed to review the case.
The issue of this case is whether Secretary Ross’ stated reason for including a citizenship question on the census was pretextual. That the citizenship question would lead to census data that underrepresents non-citizens, which targets communities of color with almost surgical precision, is not a factor in the Supreme Court’s reasoning. In fact, the Court cannot reject a stated reason for a decision because there are also unstated reasons, even if those unstated reasons are overtly political or racist.
The Supreme Court made it clear that it is not problematic for an agency head to enter office with policy ideas and work with their staff to create a legal basis for the preconceived policy. However, in this case, the evidence illustrates not only that Secretary Ross wanted to incorporate a citizenship question on the 2020 census from the time he entered office, but also that he asked other agencies to request census-based citizenship data, including the Department of Homeland Security and the DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the Voting Rights Act. Furthermore, he contacted the Attorney General personally to ask if the DOJ would request census-based citizenship data, and only then did he adopt the Voting Rights Act rationale. Therefore, it is evident to the Court that Secretary Ross intended to include a citizenship question well before the DOJ requested it and wanted to include it for some reason unrelated to the Voting Rights Act.
After finding Secretary Ross’ stated reason for including a citizenship question on the census was pretextual, the Supreme Court sent the issue back to the Department of Commerce. With the deadline quickly approaching before the census has to be printed, it is unclear if there will be another attempt to justify a citizenship question.
Discussion as to what Secretary Ross’ true motive was for including a citizenship question was not included in the Supreme Court opinion. The blatant racism of intentionally undercounting Latinx communities was omitted. The blatant attempt to increase the power of one political party at the expense of an accurate census was omitted. However, recently, a report that Thomas B. Hofeller, a republican strategist, wrote in 2015 came to light. It concluded that adding a citizenship question to the census would benefit republicans. Particularly, adding the question would allow republicans to create even more starkly gerrymandered districts, which would push democrats out of power. Mr. Hofeller determined that if districts could be drawn based on American citizens of voting age instead of the total population, it “would be advantageous to Republicans and non-Hispanic whites,” and by design, disadvantageous to Democrats and the Latinx community.
This is especially relevant since Mr. Hofeller drafted a portion of the letter to the DOJ claiming a citizenship question was needed in order to better enforce the Voting Rights Act: The exact rationale that Secretary Ross claimed as the reason the citizenship question was warranted and the exact rationale the Supreme Court just found pretextual.
