When is final really final? That question lies at the heart of a hidden threat to the legitimacy of the 2020 Census. In light of a 1992 Supreme Court decision about the finality of Census Bureau results — Franklin v. Massachusetts, a lawsuit Massachusetts brought following the 1990 Census — those committed to an accurate 2020 Census need to start planning now for the possibility Donald Trump may try to manipulate the census to serve his political ends, robbing Massachusetts and other blue states of political power and federal funds.
Recent attention to the 2020 Census has focused on outreach efforts in communities across the country as groups scramble to promote participation in the national count that takes place every 10 years. In Massachusetts, for example, the MassCounts coalition, which includes the ACLU, is working to include historically undercounted populations such as communities of color, immigrants, renters, and low-income people, and children by working with trusted messengers in the hardest-to-count communities.
On-the-ground efforts like these have been particularly energized out of concern the Trump administration is scheming to discourage census participation in major cities like Boston, New York, and Los Angeles. Most dramatically, the administration’s attempt to add a citizenship question to the upcoming census was a naked ploy to scare away noncitizens, whom the census is required to count just like citizens. In a lawsuit the ACLU and others brought, the Supreme Court blocked the citizenship question, but the highly publicized controversy may have accomplished exactly what Trump wants: to frighten the millions of people in immigrant communities away from filling out government census forms.
‘“There is no statute that rules out instruction by the President to the [Commerce] Secretary to reform the census, even after the data are submitted to him.” This view could open the door to presidential manipulation, such as leaving the president free to set final census figures free from the protections of the Census Act.’
But even if census outreach efforts overcome this real fear and manage to maximize census participation, that does not guarantee an accurate census. The completion of forms is just a first step toward attempting to count every person residing in the United States. That enormous and complicated undertaking culminates with the Census Bureau reporting state-by-state results to the president, who then is to certify results to Congress. Following that step, the redistribution of the 435 voting members of the House of Representatives among states — a process known as reapportionment — happens, along with corresponding changes to the Electoral College, the body that elects the president. Census figures also determine each state’s share of hundreds of billions of dollars of federal funds.
A worrisome threat to the legitimacy of this process lies with the step where the president is to certify census results to Congress. That step was central to the case Massachusetts brought following the 1990 Census, when it lost a seat in the House because of a Census Bureau decision about how to count certain federal employees. Massachusetts argued the bureau’s counting method violated the Census Act, which is the main federal statute that regulates the census process. But that challenge could proceed only if the bureau’s results were considered “final.”
The Supreme Court rejected the Massachusetts challenge on the grounds that figures from the Census Bureau are not final. Crucially, the court held that, under the Census Act, the president is not bound by the bureau’s figures and instead can change them. In language that now is chilling, the court wrote, “There is no statute that rules out instruction by the President to the [Commerce] Secretary to reform the census, even after the data are submitted to him.” This view could open the door to presidential manipulation, such as leaving the president free to set final census figures free from the protections of the Census Act.
To be sure, federal statutes are not the only laws protecting the census. Most importantly, the federal Constitution contains a provision — the Enumeration Clause — that requires the census to be accurate. But the Supreme Court rejected this type of constitutional challenge in the Massachusetts case, and it remains unclear in what circumstances the court would invoke the Enumeration Clause to invalidate a presidential decision to transmit to Congress population figures that differ from those provided by the Census Bureau.
For a president to reject Census Bureau figures to manipulate the census would be extraordinary, but this president has proved himself willing to resort to deceit and lawlessness for his own political ends. Advocates and the public are rightly focused now on maximizing individual participation in the census, but that will hardly be the end of the struggle to assure the 2020 Census is accurate and fair. Once census forms are completed, communities across the country will need to turn their attention to assuring the Trump administration does not try to steal the census through manipulation of the counting process, right through the last step of the president’s certification of final numbers to Congress.
Chris Dunn is the legal director of the ACLU of New York and was cocounsel in the successful challenge to the Trump administration’s attempt to add a citizenship question to the 2020 Census.