State AGs fight Jeff Sessions on citizenship question for 2020 Census

Photo: NICHOLAS KAMM/AFP/Getty Images

Under the guise of Voting Rights Act enforcement, Attorney General Jeff Sessions is pushing for the 2020 Census to include a question asking if the respondent is a U.S. citizen.

When you’re done laughing at the idea that Jeff Sessions would ever take a real step toward enforcing the Voting Rights Act, sober up quickly to the possibility of a 2020 Census that significantly undercounts immigrants and pushes power away from ethnically diverse blue states to lily-white red ones.

Attorneys General from New York, Massachusetts, and California are pushing back, with the support of 16 additional state attorneys general and the governor of Colorado.

The decennial census is the process by which every person living in the United States is counted. That information is then used to apportion House of Representatives seats among the states through the “method of equal proportions.”

There are 435 members of the House of Representatives. The number of representatives for each state is determined by the percentage of that state’s population compared to the U.S. as a whole, although each state is entitled to at least one representative.

For example, the 2010 Census counted 37,253,956 people living in California, and 308.7 million people living in the United States. California’s population, then, was 12.1 percent of the total U.S. population. California was apportioned 53 members of the House of Representatives, or 12.1 percent of 435.

Census information is also used to apportion the $700 billion in federal funding that flows to the states.

Article I of the U.S. Constitution mandates that the census be carried out every ten years, and that it count “the whole number of persons residing in each state.” The quoted language derives from the Fourteenth Amendment, which was ratified after the abolition of slavery. Prior to that amendment, slaves were counted only as “three-fifths” of a person.

The census is conducted by the U.S. Department of Commerce. In December, the Justice Department wrote to Commerce Secretary Wilbur Ross asking that a citizenship question be added to the 2020 Census to obtain an accurate count of “citizen voting-age population” so that the DOJ could better enforce the Voting Rights Act.

The DOJ claimed that Supreme Court precedent requires it to use that more detailed information to evaluate congressional districts under the Voting Rights Act.

Nonsense, say the 19 Attorneys General, who wrote to Ross on Monday, asking that the DOJ’s request be rejected.

The Voting Rights Act was passed by Congress in 1965, and has been amended twice since then. The last time the census included a citizenship question was in 1950. Congress couldn’t have required the DOJ to use information in carrying out the Voting Rights Act that it knew wasn’t collected by the census.

More importantly, including a citizenship question would undermine the accuracy of the census, because it would push many immigrants away from official census documents and census-takers out of fear of deportation.

This isn’t an idle concern, given the anti-immigrant stance of the Trump administration and the fear unleashed in immigrant communities by U.S. Immigration and Customs Enforcement agents conducting raids and detaining longtime U.S. residents.

Four former directors of the U.S. Census, who worked in both Democratic and Republican administrations, told the U.S. Supreme Court in a 2016 amicus brief that asking about citizenship on the census would frustrate its constitutional purpose:

Recent experience demonstrates lowered participation in the Census and increased suspicion of government collection of information in general. Particular anxiety exists among non-citizens. There would be little incentive for non-citizens to offer to the government their actual status; the result would be a reduced rate of response overall and an increase in inaccurate responses. Both would frustrate the actual express obligation the Constitution imposes on the U.S. Census Bureau to obtain a count of the whole number of persons in order to apportion House of Representatives seats among the states.

There’s also the question of whether a citizenship question would be constitutional. A three-judge panel of the U.S. District Court for the District of Columbia suggested in a 1980 opinion that such questions would unconstitutional.

The Federation for American Immigration Reform (FAIR) had sued the Secretary of Commerce just prior to the launch of the 1980 census, claiming that a failure to count the number of undocumented immigrants in the U.S. would lead to an apportionment that favored states with large numbers of “illegal aliens.” The court rejected FAIR’s standing to challenge the census questions, but still discussed whether the equities favored its challenge.

No, said the court, because FAIR’s legal argument was incredibly weak. The court wrote:

The Census Bureau has always attempted to count every person residing in a state on census day, and the population base for purposes of apportionment has always included all persons, including aliens both lawfully and unlawfully within our borders. The issue of the inclusion of aliens in the apportionment base has received explicit congressional attention, both at the time of the adoption of the fourteenth amendment and more recently….

During the first half of this century, a variety of proposals were made to exclude aliens from the apportionment base, and it appears to have been generally accepted that such a result would require a constitutional amendment.

The Constitution, federal statutes, and history are on the side of the Attorneys General. Of course, that doesn’t mean anything when it comes to the Trump administration.

One piece of good news on this front also came on Monday, when the Commerce Department confirmed that Thomas Brunell, its controversial pick to run the 2020 Census, has withdrawn his name.

Thomas Brunell is a professor at the University of Texas at Dallas and has served as an expert for Republican-controlled state legislatures in redistricting and gerrymandering battles. His most recent book is called “Redistricting and Representation: Why Competitive Elections are Bad for America.” Yes, really. That’s the title. Good thing he’s out of the picture.