Bills
| 3.23.22

Should the Census Bureau be Prohibited From Including Citizenship Data in the Redistricting Data it Prepares for States? (S. 2068)

Do you support or oppose this bill?

What is S. 2068?

(Updated September 27, 2019)

This bill would prohibit the Census Bureau from including citizenship data in the legislative redistricting data it prepares for states to use in the redistricting process. Title 13 of the U.S. Code mandates that the Census Bureau provide states with the small-area, block-level data necessary for legislative redistricting and population totals. 

Argument in favor

The Census plays an important role in the distribution of federal funds, social services coverage, and political representation. It’s important that it accurately reflects the American population, and since there’s a chance that providing citizenship information from the Census would have a chilling effect on participation the Census Bureau shouldn’t be allowed to share this information with the states.

Argument opposed

Given that the Census Bureau is already set to start providing citizenship information from other sources starting in 2021, it’s pointless to block it from providing the citizenship data information from the Census to states. Moreover, giving this information to states will help them draw more accurate districts, helping ensure more representative government.

Impact

U.S. residents; Census respondents; states; state-level redistricting; the Census Bureau’s provision of information to states for redistricting; 2020 decennial Census; and the Census Bureau.

Cost of S. 2068

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Cory Booker (D-NJ) introduced this bill to prohibit to prohibit the Census Bureau from providing citizenship information in the data it gives states for legislative redistricting: 

“The Trump Administration has made every effort to alter the Census process and use it as a surgical tool to undercount and hurt certain communities for political gain. This administration has changed its story on the citizen question at least ten times in the last four months and made it clear that there is no end to the lengths it will go to erode our institutions. The President has now admitted that he intends to make citizenship information a part of the redistricting process, which experts warn will benefit one political party. This egregious and blatant attempt to tamper with our democratic process would completely overhaul the rules of who gets to participate in a representative democracy in America and it can’t go unchecked.”

Sen. Booker introduced this bill in response to President Trump’s assertion that the citizenship question on the Census is needed for redistricting purposes. Speaking to reporters outside the White House in early July 2019, Trump said, the citizenship question is needed “for many reasons… number one, you need it for Congress – you need it for Congress for districting.”

In response to President Trump’s comments, Sen. Booker said, “To be clear, redistricting based on citizenship data will push communities of color — which are already dramatically undercounted — farther into the shadows.”

Sen. Booker has been a strong and vocal leader opposing the Trump administration’s attempts to add a citizenship question to the Census. He is the coauthor, along with Sen. Bob Menendez (D-NJ), of the Every Person Counts Act (S. 2580), which would prevent a citizenship question’s addition to the Census. Additionally, in July 2018, Sen. Booker was part of a group of senators who wrote a letter to Commerce Secretary Wilbur Ross demanding answers and additional documentation about what prompted the citizenship question. In their letter, the Senators wrote: 

“We are concerned by recent reports that your decision to include the last-minute, untested citizenship question was inconsistent with testimony, written responses, and informal conversations you have had with several Members of Congress explaining your decision. We request additional information and answers to ensure that political factors did not play a role in your decision regarding a constitutionally mandated activity that is traditionally nonpartisan.”

In March 2019, Sen. Booker was part of a group of 15 senators who wrote a letter to Attorney General William Barr calling on the U.S. Department of Justice (DOJ) to follow the law and protect the confidentiality of responses collected through the 2020 Census in response to reports that Trump administration officials were discussing the possibility of violating the confidentiality of Census responses. In their letter, the senators wrote: 

“With the start of peak Census operations only 11 months away, we urge you to confirm that the Justice Department and all of its employees will uphold the airtight confidentiality protections for data collected in the Census under current law,” the senators wrote.  “It is of utmost importance that the 2020 Census—a constitutionally mandated activity—be conducted in a full, fair, and accurate manner to count all persons in our country. Any attempt by the Justice or Commerce Departments to diminish the count of particular communities—even indirectly, through actions that agency officials reasonably should know will increase fear that Census responses could be used to harm people or their families—would be in contravention of the U.S. Constitution.”

In June, after the Census Bureau concluded that the citizenship question’s inclusion will have an 8% larger-than-expected effect on the Census response rate, Sen. Booker led the New Jersey delegation in writing a letter to Secretary Ross seeking weekly updates on how the lower response rate will affect their home state. In their letter, the Members wrote: 

“As you are aware, an accurate Census is not only a constitutional responsibility of the federal government, but its measurements determine the apportionment of seats in the U.S. House of Representatives, guide the allocation of more than $880 billion annually in federal funds, and are used to draw legislative districts within the state. The failure by the Bureau to address the issues facing an accurate count in New Jersey could have devastating effects in protecting the rights of our constituents and deprive them of critical federal funding for food security, school funding, first responders, and other services determined by federal formulas.”

Proponents of adding a citizenship question to the Census argue that it’s merely a way of finding out an important piece of information about American residents, just the as the existing questions about name, sex, race, and homeownership status do. In his memo announcing the citizenship question, Commerce Secretary Wilbur Ross wrote:

“Asking the citizenship question of 100 percent of the population gives each respondent the opportunity to provide an answer. This may eliminate the need for the Census Bureau to have to impute an answer for millions of people. For the approximately 90 percent of the population who are citizens, this question is no additional imposition. And for the approximately 70 percent of non-citizens who already answer this question accurately on the ACS, the question is no additional imposition since Census responses by law may only be used anonymously and for statistical purposes.”

In a written statement, Dept. of Justice spokeswoman Kelly Laco said, argued that reinstating a citizenship question on the 2020 Census would be a “legal and reasonable decision” by the federal government. However, ACLU attorney Dale Ho argued that the evidence presented at a district court hearing on the citizenship question revealed that the Trump administration introduced the citizenship question in an effort to reduce Census participation by minorities, immigrants, and other vulnerable populations.

In an October 2018 op-ed in , Christian Adams, president and general counsel for the Public Interest Legal Foundation and a former DOJ lawyer, argued that adding a citizenship question to the Census would help voting rights enforcement: 

“There are many towns, counties and school boards on the margins where a lack of citizenship data takes them off the list of places effectively protected by the Voting Rights Act when it comes to redistricting. The voting rights alarmism that has become so familiar falls silent when it involves extending protections to Americans who live in smaller jurisdictions with larger alien populations. The lack of a citizenship question doesn’t just impair voting rights enforcement in small towns. Even in the bigger cities, the Justice Department is stuck relying on citizenship ‘estimates’ to determine if the Voting Rights Act is being violated. Not asking the citizenship question on the Census has eroded African American political clout in places like Los Angeles. For decades, black Los Angeles residents were demographically squeezed out of local government by a growing Hispanic population of mixed citizenship. Over time, Hispanic populations that were a mix of both citizens and aliens had the population numbers when it came to drawing district lines. A black majority-minority district might require a given population of residents, almost all citizens, while a Hispanic district next door would have the same total population, but a smaller population of citizens. Blacks ended up being the losers here because line drawers didn’t have and didn’t use the best citizenship data from the Census. The Trump administration decision to ask about citizenship on the 2020 Census will help Justice Department to enforce the Voting Rights Act. Asking the question on the Census if someone living in the United States is a citizen makes sense to everyone except beltway elites and those people in power concerned about their own political survival.”

This bill has six Democratic cosponsors. However, it’s unlikely that it’ll pass in the Republican-controlled Senate.


Of Note: Census responses to the question “Is this person a citizen of the United States?” could be used to redraw voting districts based on the number of citizens eligible to vote, rather than the number of all residents, in a given area. In an unpublished 2015 study that surfaced as part of lawsuits over the citizenship question, a major GOP redistricting strategist concluded that this method would be “advantageous to Republicans and Non-Hispanic Whites.”

In March 2018, Commerce Secretary Wilbur Ross announced that the 2020 decennial Census would ask about immigration status — the first time the Census has asked about this issue in 70 years. Immediately after the announcement, Census experts and advocates condemned the move as a politically motivated effort to undermine the Census’ accuracy by discouraging immigrants and their families from participating.

From 1890 to 1950, the Census routinely asked all U.S. residents citizenship questions. In 1960, the issue of citizenship was only indirectly addressed. From 1970 to 2000, only a sample of the U.S. population was asked about citizenship. Finally, from 2000 onward, citizenship and all other “long form” questions were moved to the annual American Community Survey (ACS), which is sent to just under four million people in the U.S. each year.

New York, along with 17 other states, several cities, and civil rights groups, sued the Commerce Dept. — which oversees the Census Bureau — in order to block the proposed citizenship question. In mid-January 2019, a U.S. District Judge ordered the Trump administration to halt its plans to add a citizenship question to the 2020 Census. In response, the administration pressured the Supreme Court to review the case and decide whether a question about citizenship can be included in the 2020 Census. In a closed-door meeting in mid-February 2019, the Court voted to fast-track review of the ruling — the first time it had done so since 2004. 

At the end of June 2019, the Supreme Court blocked the citizenship question’s inclusion in the 2020 Census. In its ruling, the Court said the Trump administration’s rationale for adding the question was insufficient and sent the issue back to the lower courts for further consideration. However, crucially, the Court didn’t disallow the question’s inclusion in the Census — it merely said that the administration’s stated reason for doing so was insufficient. While more lower court litigation is possible, it’s going to be difficult for the government to get the question on the Census in time for the formers to be printed by the original summer deadline. 

In a string of tweets, Trump raised the possibility of delaying the Census until the citizenship question is resolved by the courts. He tweeted: 

“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter. Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen. Only in America!”

In a later tweet on July 4, 2019, Trump added: 

“So important for our Country that the very simple and basic ‘Are you a Citizen of the United States?’ question be allowed to be asked in the 2020 Census. Department of Commerce and the Department of Justice are working very hard on this, even on the 4th of July!”

Trump has also indicated that he may try using an executive order to add the citizenship question to the Census, as he argues that it’s needed to draw congressional districts. A senior administration official with direct knowledge of the conversations within the administration said, “We didn’t come this far just to throw in the towel.” A senior legal source told Axios, “The administration is considering the appropriateness of an executive order that would address the constitutional need for the citizenship question to be included in the 2020 Census."

In early July 2019, Commerce Secretary Wilbur Ross announced his department’s plans to go ahead with printing the Census without the citizenship question, apparently indicating that the administration had dropped this issue. In a statement, Ross said, “The Census Bureau has started the process of printing the decennial questionnaires without the question. My focus and that of the bureau and the entire department is to conduct a complete and accurate Census.” 

However, Trump refuted this on Twitter on July 3, 2019, tweeting: 

“The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

Later that same day, a high-ranking DOJ lawyer told a federal judge that the administration hasn’t abandoned its efforts to put the citizenship question on the Census. According to the lawyer, there may still be a “legally available path” open to the administration. 

While an attempt to use an executive order might still fail, one administration official told Axios that it might allow the administration to shift blame for the citizenship question’s failure on Supreme Court Justice John Roberts. The source said: 

“I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome.”

Regardless of whether a citizenship question appears on Census forms, the Census Bureau is poised to begin releasing citizenship information that redistricting officials can use in 2021. In addition to approving the citizenship question in 2018, Secretary Ross also directed the bureau to compile existing citizenship records from the Social Security Administration, the Department of Homeland Security and the State Department.

In May 2019, Census Bureau officials said they were waiting on guidance from Ross on whether to release anonymized information based on those records, which Bureau researchers have concluded are more accurate than self-reported responses to a citizenship question on the Census.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / tattywelshie)