WASHINGTON — The sixth sentence of the Constitution, and the first one that specifically tells the government to do something, established the census.
It called for an “actual enumeration” every 10 years and, since the end of slavery, requires answers to just two questions: “How many people live in the United States?” and “Where do they live?”
The answers to those questions are the basis for American democracy, and much more. They determine, for instance, how congressional seats are allocated and where hundreds of billions of dollars of federal money are spent.
Next week, the Supreme Court will consider whether the Trump administration may add a question about citizenship to the 2020 “short form” questionnaire — the one that goes to every household in the nation. Nobody seriously disputes that this will cause fewer people to participate and will undermine the basic constitutional goal of counting everyone.
“The Census Bureau’s own analysis was that 5.8 percent of households with a noncitizen would not respond to the census if you add the question,” said Dale Ho, a lawyer with the American Civil Liberties Union, which represents challengers in the case. “That translates to about 6.5 million people. If you put them in one state, that’s our 18th largest state.”
But the census has long asked questions beyond the essential ones. Whatever the Supreme Court rules, the 2020 short form will include questions about sex, age, race, and Hispanic or Latino origin.
“Every census question will decrease response rates,” said Mithun Mansinghani, the solicitor general of Oklahoma, which filed a brief supporting the Trump administration along with 16 other states. “For better or worse, every census has asked additional questions beyond enumeration and has contained an undercount. The 2010 census undercounted Hispanics at a greater rate than non-Hispanics.”
The basic issue, he said, was whether getting the additional information is worth the harm it does to the core task of counting everyone.
“Given the downsides of every possible census question,” he said, “it leads to a balancing.”
The balance should be struck, Mansinghani said, by the Cabinet official in charge of the census, Commerce Secretary Wilbur Ross.
But Justin Levitt, a former Justice Department official in the Obama administration who teaches at Loyola Law School in Los Angeles, said the court should not lose sight of “Job 1” of the census.
“It’s perfectly fine for the Census Bureau to ask for a lot of information,” said Levitt, who has filed a brief supporting the challengers. “That information is tremendously valuable. But to the extent that asking a question this toxic in this prominent a forum undermines ‘Job 1,’ that ought to be out of bounds.”
At a minimum, he said, questions should be added cautiously and for good reasons. But the process that led to adding the citizenship question, he said, was haphazard, dishonest, infected by politics, and questioned by experts within the Census Bureau and by six former directors of the bureau who had served in both Democratic and Republican administrations.
“The Titanic was launched with less hubris and more preparation,” Levitt wrote in an article to be published in The Columbia Law Review.
Conducting the last census required the largest peacetime mobilization in US history. It was the product of a great deal of testing and planning.
By contrast, Ross did not announce his plan to add a citizenship question until March of last year. He acknowledged that the question could have “some impact on responses” but said the information sought was “of greater importance than any adverse effect that may result from people violating their legal duty to respond.”
In sworn testimony before Congress, Ross said he was responding “solely” to a Justice Department request in December 2017 for data to help it enforce the Voting Rights Act of 1965. Three federal trial judges have ruled that the evidence in the record demonstrates that Ross was dissembling.
He had long before decided to add the question, the judges found, and he pressured the Justice Department to supply a rationale.
It is telling, too, that no other Justice Department of any administration, including ones generally thought to have more vigorous commitments to voting rights than the Trump administration, had asked for a citizenship question to be added to the main census form since the enactment of the Voting Rights Act.
Ross also said he was merely reinstating the question, and it is true that the federal government has long gathered information about citizenship.
If the Supreme Court allows the question in 2020, the consequences will be vast because the census is the foundation of American government and society, said Wendy R. Weiser, a lawyer with the Brennan Center for Justice, which filed a brief supporting the challengers.
“It will impact everything,” she said, “from the allocation of political representation and power, to the allocation of federal funds, to virtually everything in our society that depends upon data on the demographics of the country.”