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Why The Census Asking About Citizenship Is Such A Problem

The move raises serious concerns that the upcoming census will be a major failure, harming our democracy, communities and businesses and painting an inaccurate picture of America’s population.

Cross-posted at Huff­Post

On Monday night, Commerce Secret­ary Wilbur Ross announced that he is direct­ing the Census Bureau to ask all respond­ents to the 2020 census to report their citizen­ship status. He made the decision over the strong objec­tions of former census direct­ors repres­ent­ing both Repub­lican and Demo­cratic admin­is­tra­tions, 60 members of Congress, 161 Repub­lican and Demo­cratic mayors, 19 state attor­neys general, more than 170 civil rights organ­iz­a­tions, and prom­in­ent busi­ness lead­ers, among others, all of whom strongly advised against adding a citizen­ship ques­tion. The move raises seri­ous concerns that the upcom­ing census will be a major fail­ure, harm­ing our demo­cracy, communit­ies and busi­nesses and paint­ing an inac­cur­ate picture of Amer­ica’s popu­la­tion.

Here’s what you should know about what’s at stake:

Why is it a prob­lem for the census to ask about each indi­vidu­al’s citizen­ship status?

The U.S. Consti­tu­tion requires the census, every 10 years, to count each and every indi­vidual in the coun­try, regard­less of age, race, gender, ethni­city or citizen­ship status.

Census profes­sion­als agree that a citizen­ship ques­tion will signi­fic­antly reduce census parti­cip­a­tion, both by citizens and non-citizens. As former Census Bureau direct­ors recently explained to the U.S. Supreme Court, adding the citizen­ship ques­tion will create a chilling effect on parti­cip­a­tion by rais­ing privacy concerns and stok­ing the fears of undoc­u­mented indi­vidu­als that their responses may be used against them. Census profes­sion­als currently employed at the bureau have already repor­ted that a heightened envir­on­ment of suspi­cion and fear is complic­at­ing their work in the field prepar­ing for the census, even before a citizen­ship ques­tion has been added to their ques­tion­naires. Under these circum­stances, if the citizen­ship ques­tion remains, the result­ing popu­la­tion counts that we all rely on will be wrong.

Why should you care about an accur­ate census?

The census touches virtu­ally every aspect of our lives, determ­in­ing our polit­ical repres­ent­a­tion, shap­ing how federal resources are alloc­ated, power­ing our busi­nesses, driv­ing decisions by schools and police depart­ments, and inform­ing medical research.

Under the Consti­tu­tion, seats in the House of Repres­ent­at­ives are divided among the states every 10 years based on the popu­la­tion count that the census gener­ates. Seats in the Elect­oral College are alloc­ated the same way. States also use census data to draw district lines for congres­sional and state legis­lat­ive seats – a neces­sary process to make sure communit­ies are fairly repres­en­ted. Census data also guides the distri­bu­tion of hundreds of billions of dollars in federal aid. It informs stat­ist­ical public­a­tions that help busi­ness owners and local govern­ments make key decisions on matters ranging from market­ing and invest­ment to the assign­ment of police beats. And it provides academic research­ers, journ­al­ists, and others with invalu­able demo­graphic inform­a­tion.

What should you make of Secret­ary Ross’ claim that the citizen­ship ques­tion will have little impact?

Ross is an outlier in his belief that a citizen­ship ques­tion will not have a big impact on census parti­cip­a­tion. In explain­ing his decision, he acknow­ledged that the Census Bureau itself and other key stake­hold­ers objec­ted to the addi­tion of a citizen­ship ques­tion because they believed it would depress parti­cip­a­tion in the census. Their belief was based on several empir­ical analyses, as well as on decades of exper­i­ence by profes­sion­als admin­is­ter­ing and support­ing the census.

Nonethe­less, Ross did not heed their advice, claim­ing that there is “no defin­it­ive empir­ical support” for their belief ― an unusu­ally high stand­ard. The basis for Ross’ claim that the citizen­ship ques­tion will not impact parti­cip­a­tion after all? A conver­sa­tion he had with a tele­vi­sion polling firm exec­ut­ive. Need­less to say, there is very little in common between the census ― the largest govern­ment data-collec­tion oper­a­tion ― and a short tele­vi­sion consumer survey.

Is citizen­ship inform­a­tion neces­sary to enforce our civil rights laws?

Despite claims to the contrary in a letter from Depart­ment of Justice offi­cials, inform­a­tion on the citizen­ship status of every person living in the coun­try simply isn’t neces­sary to enforce our civil rights laws. For decades — and under both Demo­cratic and Repub­lican admin­is­tra­tions — the Depart­ment of Justice has pursued its civil rights mission without resort­ing to this kind of inform­a­tion. The only civil rights law for which citizen­ship data is at all useful is the portion of the federal Voting Rights Act prohib­it­ing discrim­in­a­tion in the draw­ing of district lines. Yet, no citizen­ship ques­tion has appeared on the census form sent to every house­hold since the passage of the Voting Rights Act in 1965. Regu­lar yearly surveys of a sample of house­holds already provide current and adequate data for civil rights enforce­ment to govern­ment, litig­at­ors and the courts.

Rather than improv­ing upon the data relat­ing to non-citizens, civil rights litig­at­ors gener­ally believe that adding a citizen­ship ques­tion will lead to less accur­ate data about the number of non-citizens and citizens alike.

So, what’s the real reason for asking for people’s citizen­ship status?

While we can’t see into the minds of the people who pushed for the citizen­ship ques­tion, unsa­vory polit­ical motives might be in play.

Chan­ging appor­tion­ment of congres­sional seats. The most likely impact of the citizen­ship ques­tion is to depress census parti­cip­a­tion — and thus, head­count— espe­cially among immig­rants, members of mixed-status house­holds and communit­ies of color. States with high concen­tra­tions of those popu­la­tions are likely to exper­i­ence dramatic “under­counts” of their resid­ents. If the under­counts are signi­fic­ant, then those states could lose congres­sional seats, which are appor­tioned based on the census counts. In other words, the citizen­ship ques­tion might be a ploy to change the distri­bu­tion of seats in Congress.

Meddling with redis­trict­ing. It might also be an attempt to meddle in the next round of redis­trict­ing, which is set to begin in 2021. Every state currently uses the census’s total popu­la­tion figures to draw district lines. For years, a group of conser­vat­ive polit­ical activ­ists have called for states to base their district lines not on their total popu­la­tion, but instead on their popu­la­tion of citizens who are voting age. The impact of such a change would be dramatic, alter­ing every state legis­lat­ive map in the coun­try. It would espe­cially harm communit­ies with high immig­rant popu­la­tions, as well as those with high youth popu­la­tions. In 2015, the Supreme Court rejec­ted an attempt to require states to base redis­trict­ing decisions on citizen voting-age popu­la­tion figures. It did not, however, address the ques­tion of whether it is permiss­ible for states who wish to use such figures for redis­trict­ing to do so. By requir­ing the census to track citizen­ship status, the admin­is­tra­tion might be laying the ground­work to push for redis­trict­ing based on citizen­ship figures.

Accord­ing to news reports, the polit­ical appointee who reques­ted the change, John Gore, previ­ously defen­ded Repub­lican redis­trict­ing plans that were later found to be discrim­in­at­ory, and another appointee to the census, Chris­topher Stan­ley, previ­ously worked for a member of Congress who repeatedly intro­duced legis­la­tion to add a citizen­ship ques­tion to the census.

Can the federal govern­ment use inform­a­tion collec­ted from the census to pursue immig­ra­tion actions?

No. The law is crys­tal clear: The Census Bureau cannot share personal inform­a­tion with other agen­cies, that inform­a­tion cannot be used for any purpose other than stat­ist­ical ones, and it cannot be used to harm the people who provide that inform­a­tion.

Congress has long under­stood that the privacy and confid­en­ti­al­ity of the inform­a­tion that census parti­cipants provide to the govern­ment is abso­lutely essen­tial to ensur­ing every­one parti­cip­ates confid­ently and fully in the census. So, in the Census Act, Congress included the strongest privacy and confid­en­ti­al­ity protec­tions that exist in federal law. Employ­ees of the Census Bureau are prohib­ited from shar­ing the personal inform­a­tion that they collect with anyone outside the bureau, even with the employ­ees of other federal agen­cies. And even when personal inform­a­tion stays inside the Census Bureau, the Bureau’s employ­ees can only use it to create stat­ist­ical products that contain no inform­a­tion that can be traced back to an indi­vidual person­ally. There are severe crim­inal penal­ties to back these rules up, includ­ing a fine of up to $5,000 or five years of jail time for viol­at­ing the Census Act.

Even in the face of these protec­tions, some people will be reluct­ant to parti­cip­ate in the census, either because they are unfa­mil­iar with their rights and what the census is all about, or because they do not trust the govern­ment to follow the law, espe­cially under an admin­is­tra­tion that regu­larly makes head­lines with anti-immig­rant words and actions. Public educa­tion about these rights, and strong reas­sur­ances by the admin­is­tra­tion that it will abide by its legal oblig­a­tions, will be neces­sary to coun­ter­act this pres­sure.

Can anything be done to block the citizen­ship ques­tion, or is this a done deal?

There’s plenty that can be done between now and Census Day on April 1, 2020, to keep the citizen­ship ques­tion off the census. The Commerce Depart­ment itself can modify its posi­tion, using the powers it has under the Census Act. Congress can pass legis­la­tion to over­ride the Commerce Depart­ment’s decision, using its basic author­ity under the Consti­tu­tion. And ordin­ary citizens can advoc­ate before both of those bodies.

Even if we reach Census Day with a citizen­ship ques­tion on the form, the admin­is­tra­tion will need to work to alle­vi­ate concerns that people’s responses will be used against them. Among other things, the admin­is­tra­tion should publicly commit to uphold the Census Act’s basic privacy and confid­en­ti­al­ity protec­tions, instruct federal agen­cies — includ­ing the Depart­ment of Home­land Secur­ity — to pledge not to request or use census data for their own oper­a­tions and to suspend immig­ra­tion enforce­ment actions during census time to ensure that people can answer their doors to census takers without fear.