Justice Department Replaces Legal Team on 2020 Census Citizenship Question

July 8, 2019 Updated: July 8, 2019

The Justice Department announced on July 7 that it will change the team of lawyers who have been defending the Trump administration’s bid to reinstate the citizenship question on the U.S. Census.

Spokeswoman Kerri Kupec didn’t give a reason for the change. An official at the department said the new team would be a mix of career and political appointees, including lawyers who work in the consumer protection branch.

The Trump administration is pressed for time to include the question on questionnaires that will be distributed to residents for the 2020 headcount.

The Supreme Court ruled on June 27 that the question isn’t unconstitutional, but can’t be included unless the administration comes up with a more convincing reason to do so.

Reasons Given

Commerce Secretary Wilbur Ross, who oversees the Census Bureau, argued (pdf) that an accurate citizen count is needed to properly enforce Section 2 of the Voting Rights Act of 1973, which protects minorities from unfair redistricting.

To challenge the legality of voting districts, the Justice Department needs citizen voting-age population data, which is currently taken from the American Community Survey (ACS). The ACS only surveys about 2.6 percent of the population a year. Such data is not accurate enough “especially for certain lower population areas or voting districts,” Ross argued.

Chief Justice John Roberts, joined by the left-leaning minority on the court, wasn’t convinced by the explanation, saying the administration “contrived” it.

President Donald Trump recently listed several reasons for including the question.

“Number one, you need it for Congress,” he told reporters on July 5. “You need it for Congress, for districting, you need it for appropriations—Where are the funds going? How many people are there? Are they citizens, are they not citizens?”

He said the administration is weighing four or five options on how to include the question, including an executive order.

Opposition

Prominent Democrats, such as Sen. Dianne Feinstein (D-Calif.), have opposed including the question, saying it would scare immigrants, presumably illegal immigrants, from responding to the census (pdf).

Some Census Bureau workers noted in a 2017 memo (pdf) that some survey respondents have voiced concerns about confidentiality of the data with regard to immigration enforcement.

There’s no evidence that the government has used census surveys to find and deport illegal immigrants. Moreover, the question doesn’t touch upon the legality of the respondent’s presence in the United States. It only differentiates between citizens and noncitizens, lumping legal immigrants who have yet to obtain citizenship with illegal immigrants.

Ross concluded that “while there is widespread belief among many parties that adding a citizenship question could reduce response rates, the Census Bureau’s analysis did not provide definitive, empirical support for that belief.”

Political Advantage

Democrats have an incentive to get as many illegal immigrants counted as possible. Under the current interpretation of the Constitution, seats in the House of Representatives are allocated based on the total population, regardless of citizenship. Illegal immigrants concentrate in Democrat-dominated areas and a higher count would thus give the areas more representatives in Congress and thus more electoral votes in picking the next president.

The Census population count also serves as a basis for allotting hundreds of billions of dollars in federal funding every year.

Even if including the question didn’t affect the response rate among illegal immigrants, it may still be politically disadvantageous to Democrats, argued Ben Weingarten, national security and foreign policy analyst at the London Center for Policy Research.

“Americans might see just how much their representation is distorted by noncitizens,” he said in a Feb. 21 op-ed in The Federalist. “Some will see their political power increased. Others will see their political power diluted. Does that strike any law-abiding citizen as fair?”

History

The citizenship question was first included in the census in 1820 and 1830, according to the Census Bureau. In 1870, it only applied to males 21 and older. Since 1890, it was included continually until 1950. In 1960, it was left out everywhere except for residents of New York City and Puerto Rico. From 1970 onward, the question was only included on the so-called long-form questionnaire distributed by the Census Bureau to about 20 percent of households. The long form was dropped for the 2010 census and replaced by the ACS.

Reuters contributed to this report.

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