Joshua A. Geltzer and Mary B. McCord are law professors and executive director and senior litigator, respectively, at Georgetown Law’s Institute for Constitutional Advocacy and Protection.
The Supreme Court last month denied the Trump administration’s unlawful attempt to add a citizenship question to the 2020 Census. Trump’s loss was a major victory for the rule of law. But the court’s ruling doesn’t stop the administration from skewing the census by other means. That’s the real fight now — and Trump may well be winning it.
The Census Bureau itself concluded that the inclusion of a citizenship question would lead to an undercount of vulnerable communities. But while last month’s ruling ensured that there won’t be such a question, the president’s very public and very aggressive push for it — especially against the backdrop of his already very public and very aggressive approach to immigration enforcement — might achieve the same type of outcome as if there were a question. A recent study by the Urban Institute concluded that, “even if the citizenship question is not included in the final list of questions, current discourse about immigration could suppress participation” in the census so badly as to yield the worst undercount of black and Latino communities in decades.
Why does this matter? The Constitution mandates an “actual Enumeration” of all those present in the United States. The population count is used to apportion representatives to the U.S. House of Representatives and, in turn, votes in the electoral college; to draw lines for state legislative seats; and to distribute billions of dollars in federal aid. An undercount of vulnerable communities would result in political underrepresentation at the federal and state levels, fewer electoral college votes, and less federal funding for health care, infrastructure, education and more.
There’s reason to believe an undercount has been the administration’s goal all along. Although it claimed to want to add the citizenship question at the request of the Justice Department to enforce the Voting Rights Act, the administration’s efforts to pursue the question predated its identification of that justification. This revealed, in the Supreme Court’s words, a “disconnect between the decision made and the explanation given.” This “disconnect” could perhaps be explained by the discovery of documents on the computer of a deceased Republican strategist that appear to confirm that the administration’s push for the question originated in a desire to augment Republican political power.
Additionally, the administration has encouraged the effort to mainstream the formerly fringe idea that legislative districts could be apportioned based on eligible voters instead of actual population. This view is being advanced despite the clear language of the enumeration clause, which requires apportionment based on the number of “Persons” — not citizens — of each state.
Not disavowing any of this, the president — after losing at the Supreme Court — has now offered yet another justification for why he wanted to add the citizenship question to the census: to determine how many “illegal” immigrants are in the country. But even including the question wouldn’t have yielded that information because it would ask only about citizenship, and there are millions of noncitizens who are present in the United States legally. Trump’s continued intimation that he intends to use the census to ferret out those unlawfully present spreads precisely the fear he hopes will depress participation.
Indeed, even the apparent protections included in the executive order Trump issued Thursday directing pursuit of citizenship information through other means — protections that include an acknowledgment of federal law barring the use of census-gathered data to bring immigration enforcement actions against particular individuals — may be lost on key audiences in vulnerable communities. The dry language of an executive order whose text will be read by very few Americans seems almost sure to be drowned out by the far louder rhetoric of the president himself — rhetoric that’s designed not to reassure but, to the contrary, to intimidate.
To combat Trump’s campaign of disinformation and distraction, states, counties, cities, advocacy organizations, civil society and all of us — indeed, the federal government itself — should be urging nationwide participation in the 2020 Census and reassuring vulnerable communities that they won’t pay a price for participating. That’s the way to ensure the “actual Enumeration” that our Constitution requires as the foundation for the next decade of our democracy.