Census Fracas

• Author: Mark Walsh
• Pages: 20-21

Next year, the

decennial U.S. cen-

sus will be con-

ducted as it has

been every 10 years

since 1790 —the “actual enumera-

tion” of the population as required in

Article I of the U.S. Constitution.

For the fi rst time, most respon-

dents will fi ll out forms online, with

April 1, 2020, targeted as Census

Day . But one matter of controversy

remains to be resolved before the

Census Bureau fi nalizes its ques-

tionnaire by the end of this June—

whether there will be a question

about citizenship.

On April 23, the U.S. Supreme

Court will take up a case that should

resolve the issue. The justices will

hear an appeal brought by the Trump

administration of a federal district

judge’s ruling that invalidated U.S.

Secretary of Commerce Wilbur Ross’

2018 decision to add a citizenship

question to the next census.

The stakes are high. The census is

used to apportion members of the

U.S. House of Representatives and

state legislatures, as well as to allo-

cate billions of dollars in federal aid.

Challengers to the citizenship

question point to an estimate—from

the Census Bureau’s own experts—

that asking about citizenship would

cause some 6.5 million people not to

respond to the questionnaire. Five

states—Arizona, California, Florida,

Illinois, New York and Texas—face a

substantial risk of losing a seat in the

House as a result, the federal district

judge found.

“The concern among immigrant

communities has always been that a

question about citizenship will drive

down census participation among

immigrants, Hispanics and people

who live in mixed-status households,”

says Dale Ho, director of the Voting

Rights Project of the American Civil

Liberties Union, which represents

the New York Immigration Coalition

and four other immigrant organiza-

tions that challenged Ross’ decision.

“This will cause the census to lose

some distributive accuracy, and the

result of that will be a malapportion-

ment of political representation and

will threaten the accurate distribu-

tion of federal funds,” Ho adds.

With U.S. Department of

Commerce v. New York, the high

court will consider, for the second

year in a row, a high-profi le Trump

administration policy in its April

argument session. Last year it was

the administration’s entry ban on

travelers from a handful of predom-

inantly Muslim countries, which

the justices upheld 5-4 in Trump v.

Hawaii at the end of its term.

The census case “involves an issue

of imperative public importance,”

U.S. Solicitor General Noel Francisco

told the justices when asking them

to grant review of the case without

Census Fracas

Court considers whether inquiry about

citizenship belongs on

the U.S. questionnaire

By Mark Walsh

20 || ABA JOURNAL APRIL 2019

The Docket

Supreme

Court

Report

the parties

having to

go through

a federal

appeals

court.

“The

judgment

below takes

the unprec-

edented step

of striking a

demographic

question from

the decennial census and thereby

preventing the secretary of commerce

from exercising his delegated powers

to ‘take a decennial census … in such

form and content as he may deter-

mine,’ ” Francisco wrote, quoting a

federal statute.

The two groups of challengers—

the immigrant organizations on one

hand and New York state, 17 other

states and various local governmen-

tal agencies on the other—strongly

defend the district judge’s ruling but

more or less acceded to the Trump

administration’s desire to have the

Supreme Court take up the case this

term. The justices granted review

in January, and with the late April

oral arguments, a decision is likely to

come at or near the end the court’s

term in late June, just before the

Census Bureau’s deadline to go to the

presses.

QUESTION NOT UNPRECEDENTE D

A question about citizenship fi rst

appeared on the census in 1820,

when Congress required enumerators

to count the number of “Foreigners

not naturalized.” Later, with the

exception of 1840, a citizenship

question appeared on every census

through 1950.

After that, the census moved

toward a short form for most house-

holds, while sending a longer form

to a sampling of households that

included the citizenship question.

After the 2000 census, the bureau

replaced the long form on the

decennial count with the American

Community Survey, a detailed annual

questionnaire of a sampling of the

population to collect demographic

data, including citizenship. It is not

used for legislative apportionment.

1908

1950

1970

Images of census

workers over the

last century

(pages 20-21).