US Supreme Court confronts Trump Administration in census decision

In their analysis of the US Supreme Court’s decision from 27 June 2019 dealing with the legality of adding the question “Is this person a citizen of the United States?” on the 2020 census, most analysists conclude that the court dealt an unexpected blow to the Trump Administration by referring the case back to lower courts for further action. According to one commentary, “the court’s ruling means that for now, the citizenship question will not be included on the 2020 census. However, [President] Trump has already responded that he will seek to delay the census and push for inclusion of the citizenship question”. The court’s decision has much wider implications, though, because, for the moment, it put a stop to the politicisation of potentially all federal statistical systems.

The US census is conducted every 10 years and, as Kevin Johnson explains, “by influencing electoral districting, the census can affect political representation in Congress, as well as the relative numbers in Congress from the two major political parties. That, in turn, affects how federal money is spent and which groups and programs are preferred or disfavored”.

While the census is ideally conducted as truthfully as possible and participation in it should not have negative consequences, the addition of the citizenship question could discourage (undocumented) immigrants from participating for fear of future repercussions, as recognised by the US Census Bureau itself. An inaccurate count of (in particular Hispanic) immigrants would affect the allocation of resources on the local level, according to Politico, as “a census undercount could mean a decrease in federal funds to immigrant communities”.

The most detailed overview of the consequences of adding a citizenship question is given on FiveThirtyEight, discussing several scenarios based on different assumptions about how participants will feel when they are confronted with the citizenship question. These scenarios estimate a population loss in California alone from 700,000 to over 1,8 million, thereby affecting, among other things, how congressional seats are apportioned. The Guardian reports that if the citizenship question is included, “up to 4m people could go uncounted [in the US], paving the way for Republican gerrymandering”.

Several commentaries refer to last year’s decision in Trump v. Hawaii, where the Supreme Court upheld President Trump’s travel ban. While the decision was already criticized at that time, the New York Times notes that now, “a year later, it looks even worse – particularly because it rested on three premises pushed by Trump Administration lawyers that have proven thoroughly unfounded”. In the present census case the Trump Administration had argued that adding the citizenship question would improve enforcement of the 1965 Voting Rights Act. However, as there is broad agreement on the weak justification for the citizenship question, the court (and Chief Justice Roberts in particular, a conservative who had voted with the majority in Trump v. Hawaii but changed position this time by joining the liberal judges) was concerned that rubber-stamping the citizenship question could jeopardize the court’s legitimacy.

Turning to academic analyses of the Trump Administration’s proposal, scholars from Harvard have concluded that the effect of a citizenship question across different racial/ethnic groups is unknown, but the results from their study “imply that asking about citizenship will reduce the number of Hispanics reported in the 2010 Census by approximately 4.2 million, or around 8.4 percent of the 2010 Hispanic population”. In explaining their methodology, the researchers stress that their work likely underestimates the effect of asking about citizenship status because the respondents were paid and knew they were (safely) participating in research conducted by a university, not by the government. Georgetown University supports these findings, showing how its own research suggests that the citizenship question is much more sensitive than other key demographic measures such as age, sex or race; and how nonresponse rates are likely to increase among racial and ethnic minorities as well as foreign-born people.

Research by Wolf and Cea on census history concludes that “the Administration cannot plausibly invoke census history to justify its current decision to add a new, untested citizenship question to the 2020 Census”, claiming that “to the extent that early censuses inquired as to citizenship or naturalization, these inquiries were sporadic ones, tied to census practices that the Census Bureau ultimately rejected as inconsonant with an accurate count”.

Author: Dr. Olivier Vonk