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The 2020 Census Wars Begin

The 2020
Census Wars Begin!
NiLPnote: With the Census Bureau scheduled this year to propose to the Congress the questions for the 2020 Census, the population enumeration politics begins as it does every ten years. The current issue before us now is the Trump Justice Department’s request that the Census Bureau include a question about the citizenship status of the population, something that it doesn’t do with the decennial count. They argue that this would help the enforcement of the Voting Rights Act. But as civil rights advocates have pointed out, this would be a disaster for achieving an accurate count.
 
There are a number of problems with this last minute request to add a Census question. First, the citizenship question is not necessary for the enforcement of the VRA since the current American Community Survey, based on an anonymous sample, already does that. Second, by asking about citizenship, the Census would be discouraging noncitizens from participation in the count. Third, although there are protections against this, it is possible that this information on citizenship could be used by ICE to identify the undocumented. Fourth, before new questions are added to the Census they have to undergo a rigorous testing process to assure their measurement accuracy, something which this last minute request from Justice would not allow.
 
In addition to this controversial request, the Census is currently experiencing significant underfunding, which could jeopardize its overall accuracy in 2020. Then there is the inevitable Rightwing campaign to eliminate the Census questions on race and ethnicity, claiming this is what is the main reason for the country’s racial divisions. Watch, I bet you this comes up as well! ¡Díos mio! ¡Que gente bruta!
 
—Angelo Falcón
Trump Justice Department
Request For Citizenship Question
Could Sabotage 2020 Census, Experts Say
By Maria Perez
Newsweek (December 30, 2017)
The Department of Justice has requested the Census Bureau include a citizenship question on the 2020 census form that experts claim could sabotage the results.
The DOJ letter dated December 12 (see below) said that including a question on citizenship on the census would benefit the department and allow it to better enforce the Voting Rights Act, ProPublica first reported.
«To fully enforce those requirements, the Department needs a reliable calculation of the citizen voting-age population in localities where voting rights violations are alleged or suspected,» the letter said.
 
A spokesperson from the Census Bureau said the agency has received the letter and the «request will go through the well-established process that any potential question would go through.»
But, critics are saying that including a question about immigration could prevent immigrants from participating in the census data because of fears that the government could use this information against them. This could also lower response rates and make the census more expensive.
«This is a recipe for sabotaging the census,» said Arturo Vargas, a member of the National Advisory Committee of the Census and the executive director of NALEO Educational Fund, a Latino advocacy group told ProPublica. «When you start adding last-minute questions that are not tested – how will the public understand the question? How much will it suppress response rates?»
The letter was drafted by Arthur Grey, a lawyer at the Department of Justice, to Census Bureau official Ron Jarmin.
The Trump administration could really hurt the 2020 Census, and it could affect many minorities and Democrats nationwide. Trump will most likely appoint Thomas Brunell, a Texas professor with no experience in government to the top operational job at the Census Bureau, Politico reported last month.
Brunell has worked with Republicans in trying to redraw congressional districts and is the author of a 2008 book titled «Redistricting and Representation: Why Competitive Elections Are Bad for America.» If selected for the job, his role will include overseeing the Census’ $400 million advertising budget, which the bureau has said is important when convincing undocumented immigrants to respond.
Letter from
Justice Department to Census Bureau
Dec. 12 2017
Dr. Ron Jarmin
Performing the Non-Exclusive Functions
and Duties of the Director
U.S. Census Bureau
United States Department of Commerce
Washington, D.C. 20233-0001
Re: Request To Reinstate Citizenship Question On 2020 Census Questionnaire
Dear Dr. Jarmin:
The Department of Justice is committed to robust and evenhanded enforcement of the Nation’s civil rights laws and to free and fair elections for all Americans. In furtherance of that commitment. I write on behalf of the Department to formally request that the Census Bureau reinstate on the 2020 Census questionnaire a question regarding citizenship, formerly included in the so-called «long form» census. This data is critical to the Department’s enforcement of Section 2 of the Voting Rights Act and its important protections against racial discrimination in voting. To fully enforce those requirements, the Department needs a reliable calculation of the citizen voting-age population in localities where voting rights violations are alleged or suspected. As demonstrated below, the decennial census questionnaire is the most appropriate vehicle for collecting that data, and reinstating a question on citizenship will best enable the Department to protect all American citizens’ voting rights under Section 2.
The Supreme Court has held that Section 2 of the Voting Rights Act prohibits «vote dilution» by state and local jurisdictions engaged in redistricting, which can occur when a racial group is improperly deprived of a single-member district in which it could form a majority. See Thornburg v. Gingles,478 U.S. 30, 50 (1986). Multiple federal courts of appeals have held that, where citizenship rates are at issue in a vote-dilution case, citizen voting-age population is the proper metric for determining whether a racial group could constitute a majority in a single-member district See, e.g., Reyes v. City of Farmers Branch, 586 F.3d 1019, 1023-24 (5th Cir. 2009); Barnett v. City of Chicago, 141 F.3d 699, 704 (7th Cir. 1998); Negrn v. City of Miami Beach, 113 F.3d 1563,1567-69 (11th Cir. 1997); Romero v. City of Pomona, 883 F.2d 1418, 1426 (9th Cir. 1989), overruled in part on other grounds by Townsend v. Holman Consulting Corp., 914 F.2d 1136, 1141 (9th Cir. 1990); see also LULAC v. Perry, 548 U.S. 399, 423-442 (2006) (analyzing vote-dilution claim by reference to citizen voting-age population).
The purpose of Section 2’s vote-dilution prohibition «is to facilitate participation … in our political process» by preventing unlawful dilution of the vote on the basis of race. Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir. 1997). Importantly, «[t]he plain language of section 2 of the Voting Rights Act makes clear that its protections apply to United States citizens.» Id. Indeed, courts have reasoned that «[t]he right to vote is one of the badges of citizenship» and that «[t]he dignity and very concept of citizenship are diluted if noncitizens are allowed to vote.» Barnett, 141 F.3d at 704. Thus, it would be the wrong result for a legislature or a court to draw a single-member district in which a numerical racial minority group in a jurisdiction was a majo rity of the total voting-age population in that district but «continued to be defeated at the polls» because it was not a majority of the citizen voting-age population. Campos, 113 F.3d at 548.
These cases make clear that, in order to assess and enforce compliance with Section 2’s protection against discrimination in voting, the Department needs to be able to obtain citizen voting-age population data for census blocks, block groups, counties, towns, and other locations where potential Section 2 violations are alleged or suspected. From 1970 to 2000, the Census Bureau included a citizenship question on the so-called «long form» questionnaire that it sent to approximately one in every six households during each decennial census. See, e.g., U.S. Census Bureau, Summary File 3: 2000 Census of Population & Housing-Appendix B at B-7 (July 2007), available at https://www.census.gov/prod/cen2000/
doc/sf3.pdf (last visited Nov. 22, 2017); U.S. Census Bureau, Index of Questions, available athttps://www.census.gov/
history/www/through_the_decades/index_of_questions/ (last visited Nov. 22, 2017). For years, the Department used the data collected in response to that question in assessing compliance with Section 2 and in litigation to enforce Section 2’s protections against racial discrimination in voting.
In the 2010 Census, however, no census questionnaire included a question regarding citizenship. Rather, following the 2000 Census, the Census Bureau discontinued the «long form» questionnaire and replaced it with the American Community Survey (ACS). The ACS is a sampling survey that is sent to only around one in every thirty-eight households each year and asks a variety of questions regarding demographic information, including citizenship. See U.S. Census Bureau, American Community Survey Information Guide at 6, available at https://www.census.gov/content/dam/
Census/programs-surveys/acs/about/ACS
 Information Guide.pdf (last visited Nov. 22,2017). The ACS is currently the Census Bureau’s only survey that collects information regarding citizenship and estimates citizen voting-age population.
The 2010 redistricting cycle was the first cycle in which the ACS estimates provided the Census Bureau’s only citizen voting-age population data. The Department and state and local jurisdictions therefore have used those ACS estimates for this redistricting cycle. The ACS, however, does not yield the ideal data for such purposes for several reasons:
  • Jurisdictions conducting redistricting, and the Department in enforcing Section 2, already use the total population data from the census to determine compliance with the Constitution’s one-person, one-vote requirement, see Evenwel v. Abbott, 136 S. Ct. 1120 (Apr. 4, 2016). As a result, using the ACS citizenship estimates means relying on two different data sets, the scope and level of detail of which vary quite significantly.
  • Because the ACS estimates are rolling and aggregated into one-year, three-year, and five-year estimates, they do not align in time with the decennial census data. Citizenship data from the decennial census, by contrast, would align in time with the total and voting-age population data from the census that jurisdictions already use in redistricting.
  • The ACS estimates are reported at a ninety percent confidence level, and the margin of error increases as the sample size-and, thus, the geographic area-decreases. See U.S. Census Bureau, Glossary: Confidence interval (American Community Survey), available at https://www.census.gOv/glossary/
#term_ConfidenceintervalAmericanCommunitySurvey (last visited November 22, 2017). By contrast, decennial census data is a full count of the population.
  • Census data is reported to the census block level, while the smallest unit reported in the ACS estimates is the census block group. SeeAmerican Community Survey Data 3, 5, 10. Accordingly, redistricting jurisdictions and the Department are required to perform further estimates and to interject further uncertainty in order to approximate citizen voting-age population at the level of a census block, which is the fundamental building block of a redistricting plan. Having all of the relevant population and citizenship data available in one data set at the census block level would greatly assist the redistricting process.
For all of these reasons, the Department believes that decennial census questionnaire data regarding citizenship, if available, would be more appropriate for use in redistricting and in Section 2 litigation than the ACS citizenship estimates.
Accordingly, the Department formally requests that the Census Bureau reinstate into the 2020 Census a question regarding citizenship. We also request that the Census Bureau release this new data regarding citizenship at the same time as it releases the other redistricting data, by April 1 following the 2020 Census. At the same time, the Department requests that the Bureau also maintain the citizenship question on the ACS, since such question is necessary, inter alia, to yield information for the periodic determinations made by the Bureau under Section 203 of the Voting Rights Act, 52 U.S.C. § 10503.
Please let me know if you have any questions about this letter or wish to discuss this request I can be reached at (202) 514-3452, or at Arthur.Gary@usdoj.gov.
Sincerely yours,
Arthur E. Gary
General Counsel
Justice Management Division

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