{"id":3137,"date":"2019-05-31T15:28:52","date_gmt":"2019-05-31T15:28:52","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/lpr\/?p=3137"},"modified":"2019-05-31T03:44:51","modified_gmt":"2019-05-31T03:44:51","slug":"why-adding-a-citizenship-question-to-the-census-will-not-help-enforce-the-voting-rights-act","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2019\/05\/31\/why-adding-a-citizenship-question-to-the-census-will-not-help-enforce-the-voting-rights-act\/","title":{"rendered":"Why Adding A Citizenship Question to the Census Will Not Help Enforce the Voting Rights Act"},"content":{"rendered":"

By Adriel Cepeda Derieux*<\/p>\n

Late last month, the Supreme Court heard argument in Department of Commerce v. New York<\/em>.\u00a0 The case will determine whether the Trump administration can change the census by adding a question that asks the citizenship status of all persons in the United States.\u00a0 Despite petitioners\u2019 misleading arguments, that question has no precedent or tradition<\/a>.\u00a0 When a citizenship-related question has been asked at all\u2014as it is currently, in the American Community Survey (ACS) sent annually to 3.5 million households\u2014it has been directed only to a fraction of the population.\u00a0 It will also hurt our democracy.\u00a0 By the government\u2019s own admission, the proposed question will cause a likely drop in self-response of at least <\/em>6.5 million people.\u00a0 The resulting undercount will cost states like Arizona, California, Florida, and New York a seat in Congress, votes in the Electoral College, and billions in federal funding.<\/p>\n

At argument, several justices focused on Commerce Secretary Wilbur Ross\u2019s single, publicly stated goal for the citizenship question: to collect better data for the Justice Department to enforce the Voting Rights Act (VRA).\u00a0 Chief Justice John Roberts, for one, described the Citizen Voting Age Population (CVAP) data that the question will purportedly generate as \u201cthe critical element in voting rights enforcement<\/a>.\u201d<\/p>\n

But the VRA\u2019s unbroken application without <\/em>such data gainsays this characterization.\u00a0 As District Judge Jesse Furman stressed in his judgment<\/a> setting aside Secretary Ross\u2019s decision, no VRA case has ever<\/em> been thwarted by a lack of data that the citizenship question could generate.\u00a0 In the VRA\u2019s 54 year history, \u201cDOJ ha[s] never before cited a . . . need for citizenship data from the decennial census; never before asserted that it [] failed to bring or win a VRA case because of the absence of such data; and never before claimed that it had been hampered in any way\u201d without it.<\/p>\n

At argument, plaintiffs explained why a citizenship question cannot help VRA enforcement.\u00a0 Under Thornburg v. Gingles<\/em>, the VRA requires that a \u201cmajority-minority\u201d district be drawn when a minority group represents a majority of the voting age population.\u00a0 But since, as Secretary Ross acknowledged, noncitizen self-responses to the citizenship question on sample surveys are consistently inaccurate\u2014\u201cabout 30 percent of the time<\/a>\u201d on the ACS\u2014the data a census question generates will be near worthless to determine whether minority voters are a majority in areas with relatively large noncitizen populations.<\/p>\n

A brief exercise illustrates the problem: assume a school has 10 classrooms, each with 10 students.\u00a0 Now assume the school sets out to determine how many of those 100 students did their homework by asking \u201cdid you do your homework\u2014yes or no<\/em>?\u201d\u00a0 In truth, all students in 9 of the 10 classrooms did; but none of the students in the remaining classroom completed the assignment.\u00a0 However, when asked, 99 students (all 90 who actually did their homework, and 9 of the 10 who didn\u2019t) say \u201cyes.\u201d\u00a0 The school\u2019s question now has an overall accuracy rate of 91 percent.\u00a0 That may sound impressive, but it is wrong as to 90 percent of students in the tenth classroom, and in no way helps the school identify students who did not complete their assignment\u2014or learn that they sit together.<\/p>\n

If, as on the ACS, at least a third of noncitizen responses to the citizenship question are consistently inaccurate, the data a census question generates will be similarly unhelpful to identify majority-minority districts in areas that have a large noncitizen population belonging to the minority group.<\/p>\n

The government offered that\u00a0most\u00a0respondents<\/em> accurately report their citizenship status on existing\u00a0Census Bureau sample surveys.\u00a0 But\u00a0that is only because\u00a0the vast majority of\u00a0people in the United States are citizens who answer the question correctly almost all of the time.\u00a0\u00a0The same will not be true precisely <\/em>in the areas where citizenship data is used to enforce the VRA\u2014i.e.<\/em>, places with large noncitizen populations, where the data helps assess whether voters of color constitute a majority of a district\u2019s citizen voting-age population.<\/p>\n

Census Bureau technical advisors understood all this.\u00a0 They advised Secretary Ross that estimates based on administrative sources already found in legal documents\u2014such as Social Security Administration records\u2014\u201cbetter me[t] DOJ\u2019s [VRA-related] uses\u201d could be used without \u201charm[ing] the quality of the census count.\u201d\u00a0 For decades, the Justice Department and private plaintiffs (including plaintiff ACLU and various amici) have successfully relied on such estimates.\u00a0 Indeed, the defendants could never identify a single VRA case that failed because of a data shortfall.\u00a0 The one thing that has changed is that the Trump administration needed a reason to add a citizenship question to the census.\u00a0 Perversely and incorrectly, the VRA supplied one.<\/p>\n

* Adriel Cepeda Derieux is a staff attorney in the ACLU Voting Rights Project.<\/p>\n","protected":false},"excerpt":{"rendered":"

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