The civil rights lawyer Vanita Gupta answers vital questions about the citizenship question on the census, including what you can do to stop it.
Are you an American citizen? The Trump administration really wants to know. In March, it added to the 2020 census a question asking people, for the first time in more than half a century, about their citizenship status. Administration officials have claimed, in public and before Congress, that the Justice Department needs the question answered in order to properly enforce the Voting Rights Act. But late last month, the government turned over a batch of emails as part of a federal lawsuit that casts significant doubt on those claims. The push to include the question has also set off concerns about the way such data might be used in the next decennial redistricting cycle, which begins in 2021.
For perspective, the editorial board spoke with Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, a coalition of groups that is opposing the citizenship question. From 2014 to 2017, Ms. Gupta served as the acting head of the Justice Department’s civil rights division.
What’s the most important thing we have learned from this latest release of documents?
The new documents give us evidence in black and white of something that many of us already suspected to be the case: The rationale that the Justice Department needs to go door-to-door to find out who is a citizen in order to enforce the Voting Rights Act is obviously a ruse.
The documents show that, contrary to what administration officials have claimed, the decision to add a citizenship status question to the 2020 census was made in the early days of the Trump administration, and it was made without any thought whatsoever to the consequences for the success and accuracy of the census, for scientific accuracy or for the Census Bureau’s own judgment.
The president’s chief strategist, Steve Bannon, clearly was involved from the outset. He worked with the commerce secretary, Wilbur Ross, and his political staff to make it happen and to provide the rationale later.
There’s a startling 2017 email from Secretary Ross’s chief political liaison to the White House, Earl Comstock, who acknowledges the secretary’s frustration with how slowly things were going in the process to add the question to the census — this is in May 2017 — and he assures the commerce chief that he’s going to get it done. In another email, Comstock said that he would arrange for the Justice Department to request the citizenship status question, and that he believes there are court cases to justify the need for that data. It’s trying to backdoor in a rationale that might be perceived as more politically acceptable.
This evidence also highlights the extent to which it appears that Secretary Ross misled Congress in attesting numerous times to this voting-rights enforcement rationale. And it reveals that all the “stakeholder engagement” he conducted in February and March was basically just to check the box, because the decision had been baked in months before.
So what’s really behind the inclusion of the citizenship question?
The involvement of people like Steve Bannon and Kris Kobach — the Kansas secretary of state, who is a leading proponent of the idea that voter fraud by noncitizens is rampant — says everything you need to know about what the real rationale for the question was. These are individuals who, along with Attorney General Jeff Sessions and other members of the Trump administration, have long had a deeply anti-immigrant agenda. They’re seeking to redefine and restructure American democracy to preserve their political power at a time when the demographics of this country are changing significantly. The census, the independence of the Justice Department and the federal courts, voting rights and voting access — these are all core functions of our democracy that are being weaponized for a partisan agenda, an agenda born out of deep anti-immigrant, anti-people-of-color sentiment.
This isn’t the first time that nativists have sought to have a citizenship question included in the census. It’s just that it’s always been a fringe agenda, and now that fringe is in political power. And this question is just the beachhead. It goes hand in hand with efforts to purge voters and restrict voting rights; with moves to strip citizenship from American citizens; and with schemes to revoke birthright citizenship, which is guaranteed by the 14th Amendment.
For more on the citizenship question in the census
Why does it matter how the census is run?
It’s important to remember that the constitutional requirement to count each and every person, not just citizens or legal residents, is based on the very first thing the federal government was told to do when this country was established. It’s literally Job 1.
And there’s only one constitutional purpose for the census, which is to allocate seats in the House of Representatives and to determine Electoral College votes. This is the basis for political power, and the census is foundational to our democracy because of that. Today, of course, hundreds of billions of dollars in federal money gets doled out to communities based on the census count.
Isn’t it reasonable for the government to want to have data on citizenship?
Well, for starters, states already know that information. They have it through the American Community Survey, which the Census Bureau sends out to about 2.5 percent of households every year, and which asks a broad range of questions about jobs, housing, schools, citizenship status and more.
But the mandate of the decennial census is one thing alone: to count every single person in this country. It isn’t to be used as a fishing expedition to get random information on people. Also, we know that in this administration, a citizenship question is not benign.
Which communities are most at risk of being undercounted?
We know who the hardest to count communities are: communities of color, rural communities, urban low-income households, immigrants, children under 5. Even before the citizenship question was added, there were tremendous levels of fear among immigrant communities in particular around reporting personal data to the government. Consider what happened to the Dreamers, who were told by the Obama administration to trust the federal government and register in order to get some level of stability in their status. Then the Trump administration yanked that away from them, and their status is now in limbo.
Remember also that a lot of immigrant families are mixed status — there are undocumented family members living in the same homes as legal immigrants and U.S. citizens — so the repercussions of this fear are significant. The Census Bureau encountered unprecedented fear about confidentiality of responses in September 2017 pretests, even without being asked about citizenship. The concern, which is understandable, is that their data will be used against them for enforcement purposes or otherwise.
How does the fight over the citizenship question relate to debates over redistricting?
First, the census count serves as the basis for states to redraw their district lines every decade. Under the Constitution, those districts must be equally sized. The Supreme Court has been extremely demanding about the degree of precision in measuring equality.
In a 2016 case called Evenwel v. Abbott, a group of voters in Texas asked the court to rule that only eligible voters should be counted toward equalizing districts. The justices unanimously rejected that argument and ruled that states may draw districts based on the total number of people in those boundaries, not just citizens or eligible voters.
That was clearly right. The Constitution requires lawmakers to represent every single person in their district, not just certain people or fractions of people. We fought a civil war over this concept! And once you go down the slippery slope of limiting representation to citizens, you have to ask: Where is the line? Are we talking about all citizens or only those who are eligible voters? Because that would exclude children. Or what about only citizens who actually turn out to vote? If I then don’t vote, does that mean my legislator won’t represent me?
Still, there are people who were upset with the court’s decision in the Evenwel case and are trying to find ways around it. So the effort to challenge the Evenwel decision is quite alive and well, and it’s playing itself out in state legislatures right now.
In Missouri, the statehouse in May passed a constitutional amendment that would require state legislative districts to be drawn using citizens rather than the total population. In Nebraska, there is a bill that would exclude the noncitizen population from the redistricting process. And in Alabama, the state has filed a lawsuit with the same goal.
My sense is these efforts are seeking to use various tactics to achieve the same end, which is to weaponize the census to redefine American democracy for a narrow set of people. They’re trying to fundamentally change what this country is, and aspires to be, by creating different classes of people — including people who may actually be here legally but who are rendered invisible for political representation purposes, as well as for the purposes of being part of the community and sharing in police, health care, hospitals, schools and the like.
And the data that would come from the citizenship question are a precursor to that push, a necessary ingredient for states that want to make their noncitizens invisible.
What can regular people do to ensure a full and accurate census count?
We’ve had a lot of people ask if they should boycott the census. First of all, filling out the census is required by law. But more to the point, it would play into Steve Bannon’s greatest dream, which would be to have a systematic undercount of vulnerable communities, particularly communities of color, that would result in reduced political representation and reduced availability of basic services.
Right now, there are six federal lawsuits challenging the citizenship question. In one of these cases, filed by 17 state attorneys general and a bipartisan conference of mayors, the judge has suggested the administration included the question in “bad faith.” A lot more is going to be revealed, but it’s quite possible that federal courts will find that the process violated federal law and possibly even the Constitution.
The bottom line is, this census is happening, and that’s why we’re fighting so hard to undo this question.
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