The Possibility (and the probity) of a Citizenship Question on the 2020 Census

By Erin Flaherty

In 1965, President Lyndon B. Johnson signed into law the Voting Rights Act. An important moment in the movement towards equality, this aimed to overcome the unfair barriers that many state and local governments had put in place to stop African Americans from voting. Unfair measures like using literacy tests and grandfather clauses were officially illegal. However, over 50 years later, this act is being used by the Trump Administration in a way that critics argue would bring the United States further away from equality.

The Trump Administration announced in March of 2018 that they are adding a citizenship question to the 2020 census. This question would ask “Is this person a citizen of the United States?” for each family member that the survey pertains to. The Trump Administration says that this is necessary to enforce the Voting Rights Act, which “prohibits discrimination against any citizen’s voting rights on account of race, color, or membership in a language minority group”. They argue that minority communities can’t elect the representatives that they want in elections without this data being available to the government, since their districts have many ineligible voters.

Since this announcement, many have come out against this decision, citing several reasons as to why it would be a bad idea to add this question. Critics have worried that this added question will scare many immigrants away from filling out their survey. Having the census produce an accurate count of the population is essential, since the government uses this count in various ways, like when funding infrastructure or determining districts for congressional appointments. Cities where immigrants live could receive less funding if immigrants are scared away from filling out the census, leading skeptics to believe that this is an attempt by the Trump administration to hurt Latino and immigrant-heavy communities.

Even before this question was added, in the 2010 census, many researchers had already expressed concerns about possible skewed census results since immigrants were already avoiding taking the survey. In 2015, a respondent told researchers that “the possibility that the census could give my information to internal security and immigration could come and arrest me for not having documents terrifies me.” This concern among immigrants would only be heightened and intensified by adding a citizenship question. The Trump administration, nor is any immigration agency allowed to access specific Census Bureau information, but many immigrants are fearful of giving a government organization this info regardless.

In late March of 2018, a group of 14 states, led by California filed a lawsuit against the Census Bureau. These states arugethat in adding this question, the Bureau will violate the Constitution, since the Constitution requires that every resident, regardless of whether they are or are not a citizen, is counted in a census. These states argue that having this question would skew data and allow for funding to be allocated incorrectly, along with allowing incorrect political boundaries to be drawn. According to them, Trump’s citation of the Voting Rights Act is merely an excuse to hurt immigrant communities. “The census is supposed to count everyone”, says Attorney General Maura Healey of Massachusetts, a backer of the lawsuit. “ This is a blatant and illegal attempt by the Trump administration to undermine that goal, which will result in an undercount of the population and threaten federal funding for our state and cities.”  

Judge Jesse M. Furman from the District Court of New York was the first federal judge to rule against the question. Trials are just beginning in California and Maryland, and many involved in the lawsuit had been expecting that the issue will make its way to the Supreme Court. Recently, it was announced that the Supreme Court will be making a decision regarding Wilbur Ross, the Commerce Secretary of the Census Bureau. However, this decision won’t necessarily be in relating to the citizenship question; the trial will focus on whether Ross and others involved with the Census Bureau can be compelled to answer questions about the addition of the question. This is only really one component of the case and wouldn’t directly change the fact that right now, the Census is still planning on including this question.

It is getting closer and closer to when census surveys need to be printed. The deadline is in July of 2019, and many of the plaintiffs involved in the case are worried that trials won’t finish in time to change the current plan to include the question. This time crunch could cause various scenarios to play out, according to law expert Thomas Wold, counsel with the Democracy Program at the Brennan Center for Justice at the New York University School of Law. He speculates that the Supreme Court could rule against the lower courts and ask the lower courts to reconsider their rulings. However, he also doesn’t doubt the possibility that the Supreme Court doesn’t get to hear the case in time, and therefore the question is kept on the census. “The government could ask to leap over the appeals case in all three cases,” he adds. “The Supreme Court can move very quickly if it has to, but it doesn’t really like to do that because it doesn’t make for the best decisions.”

Whether it has been surrounding the legality or the morality of the question, this decision by the current United States administration has definitely brought light to significant conversations regarding the treatment of immigrants under the Trump Administration. “This decision comes at a time when we have seen xenophobic and anti-immigrant policy positions from this administration,” said Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. Many immigrants have told news organizations that they will not fill out their Census survey no matter the stance of the citizenship question come 2020, since their fear has already been stirred up enough. Will we ever be able to get an accurate count of our population with the current climate surrounding immigration? Perhaps, the census is no longer a viable option to do so.

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