When Commerce Secretary Wilbur Ross announced in March that he was adding a question about U.S. citizenship to the next full U.S. head count, it set off a firestorm of criticism -- and a spate of legal challenges by cities, counties, states and immigrant-rights groups. U.S. District Judge Jesse Furman, an appointee of former president Barack Obama, is hearing the first case, led by New York Attorney General Barbara Underwood, in a two-week trial in Manhattan without a jury.
1. Why the backlash?
With President Donald Trump’s heated rhetoric in the air, critics say, a question about citizenship status on the 2020 U.S. census could scare immigrants and noncitizens away from filling out the once-a-decade household survey. That would skew the count, diluting the political power of those who didn’t respond. The Trump administration calls that a fever dream and says it needs to ask the question to help enforce Section 2 of the Voting Rights Act of 1965, which prohibits discrimination in election procedures.
2. Has the census asked about citizenship before?
Yes. The question “Is this person a citizen of the United States?” or something like it was part of the census as far back as 1820. But it came to be seen as less important as the waves of immigrants to U.S. shores receded, and it last appeared on the complete, decennial survey in 1950. In 1970, thanks to political pressure, the question returned on the long-form survey sent only to some households. From there it migrated to the annual American Community Survey, which replaced the long form in 2005.
3. What’s at stake?
Power. The trial, which has coincided with a bitterly contested midterm election, could help rewrite the nation’s political map for a decade or more. Census results are used to apportion U.S. congressional seats and divvy up the Electoral College votes that determine the winners of presidential elections. The data are also used to distribute billions of dollars a year in federal aid to states and localities. The result could give Democrats or Republicans an advantage in three years and through at least 2031, just after the next decennial survey is done.
4. What’s the legal issue?
Whether the administration acted on a legitimate need for information on the noncitizen population or on a desire to limit voting power. Ross, whose department includes the Census Bureau, initially said he added the question after a request from the Justice Department. Later he acknowledged that he had discussed the issue earlier with immigration hawks including Kansas Secretary of State Kris Kobach, who was on the president’s disbanded voter-fraud commission, and former White House chief strategist Stephen Bannon, long before the Voting Rights Act came up. (Ross more recently has been accused of distorting an expert’s opinion on how the citizenship question could affect response rates.) The Census Bureau itself, which has other methods of collecting information to help enforce voting rights law, isn’t helping the government’s case.
5. What’s the case against asking the citizenship question?
That its real purpose is to discourage people who live in immigrant communities from participating in the survey for fear that federal agents might use their responses to target them or someone in their household, even if they are in the U.S. legally. In legal terms, opponents say the decision to add the question was “unconstitutional and arbitrary.”
6. What does the government say?
That the citizenship question will improve the accuracy of the count and that claims about political motivation are based on “unrelated innuendos.” As for how the question came to be, the U.S. says that internal discussion of such important matters is common and that the secretary of commerce has complete control of the format and content of the census.
7. Does the Census Bureau share the identities of noncitizens?
No, the bureau wouldn’t pass along the name and address of a noncitizen to immigration authorities, for example. That’s not to say this isn’t a real fear among some Hispanics and other minorities, such as Asians, whose households may have disproportionate numbers of noncitizens, says William Frey of the Brookings Institution, an expert on the census who isn’t involved in the case. Frey says 14 percent of the U.S. population lives in households with one or more noncitizens.
8. How will the issue be resolved?
By the Supreme Court, most likely. In addition to the case on trial in New York, there are others percolating across the country, and the losers will almost certainly appeal. The high court rejected a last-minute bid to put the Manhattan trial on hold while it decides whether Ross can be forced to testify about his knowledge of the process that led to the question. On Nov. 6 it ordered an expedited briefing on the government’s bid to narrow the scope of the plaintiffs’ case to the materials the Commerce Department says were used in deciding to add the question. Time is short. The department has already begun planning for the 2020 count and is scheduled to begin opening offices around the country early next year.
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