Photo credit: Shannon Stapleton/Reuters.
In late April 2019, the Supreme Court heard oral argument for the Department of Commerce v. New York, 139 S.Ct. 1316 (2019), a case which asks whether the Secretary of Commerce’s decision to add a question to the Decennial Census about responders’ citizenship status violated the Enumeration Clause of the U.S. Constitution, art.I, §2, cl.3? [1] The last time the census inquired about citizenship was in 1950. The question asks “Is this person a citizen of the United States?” If you answer “yes,” the question then asks for more details about where you were born and whether your parents were born in the United States.
Based on oral argument, it’s likely that the Supreme Court will uphold the question’s addition. Doing so will negatively impact millions of people across the country as it will reduce the likelihood that noncitizens, and other racial minorities, will not participate in the Census. This will reduce the allocation of public resources, funding, and political power in communities with noncitizen populations. While the Government’s legal defense of the question are suspect at best, the political motives driving the Trump Administration’s decision to add the question reeks of white supremacist, nationalist politicking — politics that are gaining ground (once again) in the Supreme Court. Ultimately, this is an effort to construct barriers to the democratic self-determination of noncitizens, overwhelmingly Latinx, Asian, and black peoples, in low-income communities which impacts the voting power of millions.[2] Moreover, this litigation is another brick in Trump’s wall to protect his voting base, the dwindling white majority, who anxiously fear being replaced by black & brown people. A white majority afraid of us coming into power. A fear that is irrational given the radical beautiful vision of liberation that communities of color are fighting for.
Background on Adding the Question
During oral argument the Secretary of Commerce, Wilbur Ross, argued that purpose behind adding the question was to better enforce Section 2 of the Voting Rights Act of 1965 (VRA), which contains protections for racial and language minorities.[3] However, an examination of the emails, memos, Congressional testimony, and public documents released as part of the multiple lawsuits surrounding the 2020 Census revealed that the VRA is never mentioned in any of the early discussions of the Administration’s decision to add the citizenship question. The record does contain plenty of discussion about apportionment, however. Specifically, the record includes evidence that Secretary Ross’ main concern was whether undocumented immigrants are considered in population counts used to determine how many Congressional seats and Electoral College votes each state receives.
However, if the Trump Administration did want to collect citizenship data to better enforce the VRA, the Census Bureau already provides data about immigration status via the American Community Survey (ACS). This data would not only be more accurate but also less expensive than adding a citizenship question. Moreover, Census Bureau researchers recommended compiling various existing records about citizenship that agencies already have. Notably, since 1965, the VRA has been enforced without collecting citizenship data from every household in the country. And, when the Census Bureau approached the Department of Justice to inform them about more effective ways to get citizenship data without adding a citizenship question, Secretary Jeff Sessions directed his team not to meet with the Census Bureau staff.
Interestingly, the 2020 Census will also count people who are in immigration prisons [4] as part of the population in those, mostly rural, communities. This allows members representing these areas, which are in overwhelmingly conservative rural districts, to get more resources and political power to expand the immigration caging machine in these areas, and allow them to benefit financially, materially, and politically. In other words, Trump wants to preserve the prison economy in rural areas that feeds on black and brown bodies and benefits whites. Despite counting these bodies for the Census (& profit), people held in these cages are not allowed to vote thus raising serious questions about our democracy.
The Citizenship Question is Unconstitutional
This question has been subject to numerous court battles across the country. As many Amicus briefs argued, adding the citizenship question Secretary Ross proposed to the 2020 Decennial Census questionnaire violates the Enumeration Clause of the United States Constitution.[5] The administrative record alone demonstrates that Secretary Ross’s decision was arbitrary and capricious under the Administrative Procedure Act (APA) and therefore supports no legitimate government purpose justifying the inevitable inaccuracies in the count. For example, the findings of the district court in City of San Jose et al. v. Ross et al., 18-cv-2279 (N.D. Cal), along with those in the companion case California et al. v. Ross et al., 18-cv-1865 (N.D. Cal.), based on substantial record evidence, demonstrate that by adding the citizenship question, Secretary Ross made a decision that will undermine distributive accuracy and is therefore inconsistent with the goal of equal representation. Moreover, the California district court found that in the present political and social macro-environment, adding the question will increase the nonresponse rates of Latinx, Asian, and black people who are noncitizens, and that any follow-up procedures by the Bureau will not make up for the undercount. In fact, the Bureau’s follow-up procedures will be less effective with these groups than with other groups. As a result, states where immigrant people are heavily concentrated will experience an undercount by a greater degree than other states. These voters will see their votes diluted and their political representation and their share of federal funding diminished. The Secretary’s decision violates the Enumeration Clause and was properly enjoined by the California district court.
Suppressing Self-Determination
While the US has asked about the citizenship status of particular subsets of the population before (e.g. foreign born men 21 years of older in 1890, 1900, and 1910), this is the first time in the 230 year history of the Census that the US will inquire about the citizenship status of every household in the country. This raises the question: why now? As various public records uncovered during litigation hint, the Trump Administration’s motive for adding the question is fulfilling his original campaign promise: Make America [White] Again amidst white Americans’ growing irrational anxiety and fear that the country will no longer be majority white.
The goal in asking this question is to strike fear into racial minority communities, particularly in Latinx, undocumented, and mixed status households so that they refuse to answer the question or participate in the Census altogether. There are credible reasons to fear disclosing one’s immigration status to the government given the US’s history of using that data to target people for deportation. This includes citizenship information provided to obtain medicaid, enroll students in schools, apply for public benefits or even seek protection as the victim of a crime or of sex trafficking. In fact, Census Bureau research estimated that about 6.5 million people will not respond to the 2020 census themselves if a citizenship question is included out of this fear. The Trump Administration is weaponizing this fear to advance the conservative goals of voter suppression targeting racial minorities. Such voter suppression efforts have been found to be motivated by racial animus and an effort by Republicans to preserve power.
By discouraging people to not participate in the Census, communities of color, largely represented by Democrat lawmakers, will be overwhelmingly undercounted. This will impact how districts are drawn and the allocation of about $880 billion of federal dollars. Accordingly, communities with large Latinx populations will experience a widening gap in resources provided for education, healthcare, infrastructure, libraries, housing, and economic development. Moreover, the Census informs research, public policy decisions, and paints an important picture about how people are doing in the country. Without an accurate count, especially of communities of color (notably Latinx communities, which are projected to be the largest growing population in the US), policymakers will have an inaccurate basis from which to make critical decision for the next decade.
Undercounting communities of color has been a decades-long project of the right wing. This has meant that historically these communities have not received their share of political representation and federal resources. For example, in 2010, an undercount in the California Census which resulted in the state losing around $1,145 in federal funding each year. Counties with high Latinx populations lost $650 million between 2002 and 2012 in eight federal programs because of the undercount. When the Census Bureau wanted to use a new statistical sampling technique to eliminate the undercount of racial/ethnic minorities for the 2000 Census, House Republicans successfully stopped the Census Bureau in a in a 5–4 Supreme Court decision. The Trump Administration seeks to widen this inequality. The battle to outright deny the vote to racial minorities stems from deep racial animus on a country founded on the principle that universal democratic participation is a threat to political hegemony. [6]
At the end of the day, Trump’s goal is to suppress the political power (i.e. self-determination) of racial/ethnic minority groups across the country in an effort preserve white patriarchal supremacy. Study after study confirm that white social identity, racism, and sexism were determining factors that moved white voters to vote for Trump. Thus, adding the citizenship question to the Census is essential to achieving this goal by thwarting the political power of racial minorities. This is core to the decades-long project to suppress votes, control state legislatures, and cement conservative policies—which recently bore fruit by passing some of the harshest anti-abortion laws in Georgia, Missouri, Alabama, and Ohio. Notably, by limiting political representation (i.e. self-determination) conservatives are then able to limit who gets a say in electing judges across the country (including immigration courts) and nominating justices to the Supreme Court — thus impacting whether the citizenship question is constitutional and whether the Court will overturn Roe v. Wade.
At the same time, the Trump Administration ramp-up of the deportation machine contributes to the goal of Making America [White] Again by arresting, caging, and physically removing as many black & brown immigrants as possible. The value of whiteness is as much a psychological effort as it is a physical one, in that its value depends on the devaluation of black and brown existence. Accordingly, suppressing federal resources means diminishing the quality of life and social-mobility of communities of color, particularly black & brown womxn, in an effort to erase their (our) physical, political, and social existence. Moreover, since elected, Trump’s changes to immigration policy, building from Obama’s legacy as Deporter-in-Chief, have skyrocketed the number of deportations while limiting legal relief for immigrants in the U.S. The preservation of whiteness, particularly among poor whites, who — despite also being hurt by Trumpian hyper-capitalist policies — remain loyal to his base to preserve that whiteness by removing as many immigrants as possible and preserving racial and economic segregationist enclaves that thwart our political power.
[1] It reads: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
[2] E. Earl Parson; Monique McLaughlin, Citizenship in Name Only: The Coloring of Democracy while Redefining Rights, Liberties and Self Determination for the 21st Century, 3 Colum. J. Race & L. 103, 118 (2013) (“As it relates to people of color, citizenship has historically been a tool for exclusion instead of inclusion. This issue of full citizenship participation has been a recurring issue for the United States Supreme Court for over 200 years, with the Court repeatedly addressing the domestic discourse of citizenship and its legal interpretation. While the Court, even to this day, continues to hear cases that affect citizenship rights, conservative lawmakers continue to pass laws that affect voting rights and judicial participation.”)
[3] Voting Rights Act of 1965 § 2, 52 U.S.C.A. § 10301(a) (“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”)
[4] See section 15 (c) People in federal detention centers on Census Day, such as Metropolitan Correctional Centers, Metropolitan Detention Centers, Bureau of Indian Affairs Detention Centers, Immigration and Customs Enforcement (ICE) Service Processing Centers, and ICE contract detention facilities—Prisoners are counted at the facility. Staff members are counted at the residence where they live and sleep most of the time. If staff members do not have a usual home elsewhere, they are counted at the facility.
[5] See e.g. Brief for the City of San Jose and the Black Alliance for Just Immigration as Amici Curiae in Support of Respondents (U.S.,2019); Brief of Amici Curiae National Asian Pacific American Bar Association, Asian American Legal Defense and Education Fund Et Al. Supporting Respondents; Brief of LatinoJustice PRLDEF and Fifteen Other Organizations as Amici Curiae in Support of Respondents
[6] See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books, 2009) at 137 (Arguing that the denial of universal suffrage rights in the nineteenth century was an effort sustained by economic and social elites who “found it difficult to control the state under conditions of full democratization.”)