The importance of answering the citizenship question on the census
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This past week the American Civil Liberties Union filed yet another desperate lawsuit challenging the secretary of Commerce’s decision to reinstate a citizenship question on the 2020 decennial census. The ACLU filed suit two months after the sanctuary state of California first asked the federal courts to prevent the 2020 census from asking who is and is not a citizen.

Many elected officials in California and other Democrat-led states, assisted by left-wing, legal groups, seem more concerned about advancing the interests of illegal aliens than those of U.S. citizens.

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States have an obligation to ensure free and fair elections for their citizens. For that reason, states including Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Oklahoma, South Carolina, Tennessee, and Texas have requested that the Census Bureau include a question regarding citizenship on the 2020 Census questionnaire. A reliable calculation of the citizen, voting-age population is needed in order for states to meet their obligations. The decennial census questionnaire is the constitutional vehicle for collecting that information.

States need citizenship data for redistricting. Litigation over redistricting is currently before the Supreme Court. However the Court decides in these cases, follow-on litigation over redistricting is a certainty. States must have accurate data for defending against claims that they have diluted the right to vote. Section 2 of the Voting Rights Act prohibits “vote dilution” that produces discrimination in the results of redistricting.

Ironically, effective April 1, California itself asks about citizenship. California’s expanded Motor Voter Registration law, allowing illegals to get a driver’s license, theoretically prevents illegals from automatically being registered to vote. The law requires the driver-license applicant to attest that he or she is qualified to vote, namely attesting to being a citizen. The pertinent statutory language is “A notation that the applicant has attested that he or she meets all voter eligibility requirements, including United States citizenship” is required before the person is automatically registered to vote.

So why the uproar about the 2020 Census asking the citizenship question? The Census Bureau already asks the citizenship question on what is called the American Community Survey (ACS). The ACS, however, only goes to roughly one in every thirty-eight households. Asking the citizenship from the ACS on the 2020 Census, the count actually required by the Constitution, ought not to be controversial.

Secretary of Commerce Wilbur RossWilbur Louis RossOn The Money: US files complaints at WTO | House leaders get deal to boost biz investment | Mnuchin says US will consider Iran sanctions waivers | FCC deals blow to Sinclair-Tribune merger Ex-cyber officials demand to know security measures for 2020 Census It’s time to confirm the US Export-Import Bank Board for our economic security MORE, however, must have anticipated controversy over the citizenship question. The media firestorm prior to and since the announcement confirms his prescience. Fortunately, Ross’s memorandum announcing the question explains the process, rationale, and indeed the necessity for adding the citizenship question.

In addition, the Department of Commerce has produced the documents the secretary relied upon in making his decision. Those documents further illustrate his extensive review and careful consideration of the question.

Ross’s memorandum shows that the ACS citizenship estimates are very flawed. In the ACS responses, approximately 30 percent of those claiming to be citizens are in fact not citizens. Cross-referencing the ACS responses with other administrative records demonstrates the high level of false claims of citizenship. That means that the ACS 2013 estimate of 11 million illegals is grossly inaccurate. The actual number of illegals in the U.S. is millions more.

 

If the Attorneys General of California and New York truly care about a complete and accurate Census population count, they would be encouraging their citizens to be counted. But instead they are spreading misinformation and encouraging non-participation in the Census.

These attorneys general are not telling people the facts. Census information is protected by law. Answers to a form may not be used for law enforcement or any other purpose that would reveal their identity or how they responded to a question. Census employees swear an oath to keep those data confidential for life, and impermissible uses of data may be punishable by significant fines and up to five years in prison.

Resistance by non-citizens to filling out their Census forms has occurred in the past. What is new are the actions of state officials that effectively encourage non-citizens, their families and friends to resist the Census. Resisting the Trump administration on the Citizenship question actually jeopardizes protection of minority rights by blocking collection of more accurate data that would ensure better enforcement of the Voting Rights Act.

The strategy of California and New York is indeed a high-risk one. It also risks reducing their receipt of federal funds. Congress has given the Census the critical, but non-constitutional, purpose of providing the basis for allocating much federal funding.

If their court challenges to the citizenship question ultimately fail, as they should, California and New York likely will have achieved exactly what they say they fear: lower Census participation by non-citizens. Whatever political advantage and ideological satisfaction their actions may serve, those actions do not serve the citizens of California and New York.  

California’s fight to prevent collection of accurate citizenship data, however, is certainly understandable in terms of power politics. California’s population has continued to grow, although it has slowed in recent years. The increase in California’s population between 2006 and 2016 is reported to be about 3.1 million. Yet, in that same period, California is also reported to have lost about 1.2 million more people to other states than it gained from other states. Also, the number of births, less deaths, during that period is only about 2.8 million people. Thus, adding the net number of births to the net number lost to other states should produce an increase in population for the 2006-2016 period of only about 1.6 million. The additional increased population of 1.5 million during just this 10-year period came from out of the country.

How many of these new, as well as other, Californians are illegals? We don’t know due to the lack of good data.

Most, if not all, states want to grow their populations. It’s about political power. Gaining or losing population relative to other states means gaining or losing seats in the U.S. House of Representatives and votes in the Electoral College.

Other states are entitled to know how much of California’s population consists of illegals and the children of illegals born in the U.S. An increasing percentage of California’s political power is obviously built on a population of illegals.

By declaring itself a sanctuary state, California has put out the welcome mat for illegals. Other states deserve to know how much political power California has taken from them by inviting illegals to move into the state. Thanks to Secretary Ross’s decision, the other states will have the information necessary to know how many seats in the U.S. House and votes in the Electoral College California are being unjustly taken from them.

John S. Baker, Jr. is a Professor Emeritus at the Louisiana State University Law Center whose teaching and writing focuses on Constitutional law.