Distortions in census numbers give a boost to Team Trump

While the news of Republican state legislatures’ assault on voting rights across the country makes headlines, another chink in democracy is unfolding more quietly: the redistricting of delegates to Congress — and the reallocation of states’ respective votes in the Electoral College in time for the 2024 presidential election — based on a census conducted during a pandemic. 

Worse, the 2020 census was overseen by a president who stopped the actual head-counting in October 2020, buoyed by the U.S. Supreme Court’s grant of an emergency petition to stay the process. Justice Sonia Sotomayor wrote a dissent, sagely noting that “the harms associated with an inaccurate census are avoidable and intolerable.” We know now that the Supreme Court’s decision endorsed the worst of both worlds.

As put by Sotomayor, the Trump administration claimed that “absent a stay, the Bureau will not be able to meet the December 31 statutory deadline for reporting census results to the President.” But the U.S. Census Bureau missed the Dec. 31 deadline anyway. Meanwhile, untold numbers of individuals — those more likely to be people of color and/or living in poverty — went uncounted. 

The Census Bureau released its first set of data on April 26, explaining the delays as “due to the COVID-19 pandemic and issues related to compiling the apportionment population.” Yet even before former President Trump’s stop order in October, the pandemic had already slowed down the counting process, which entails going door-to-door to maximize accuracy. Because of COVID-19, on March 18, 2020, the Census Bureau suspended all field operations and did not resume them until April 15, when they should have already been functioning at peak productivity. The months-long shutdown also made it impossible for the Census Bureau to efficiently hire and train staff — so-called “census takers”— whose job it is to visit households that haven’t responded online, by mail or by phone. Overall, census operations were delayed for three months. Once they resumed, Trump cut off the counting in October, sending census takers packing immediately.

Data shows that census undercounting tends to occur in counties with a high poverty rate (over 25 percent), a lower high school graduation rate (under 75 percent), and among families with lots of young children. Bear in mind, too, that poverty in America disproportionately strikes women (12.9 percent over 10.9 percent of men), people living with a disability (25.7 percent), children (16.2 percent as compared to 9.7 percent of seniors), and people of color (a whopping 25.4 percent of Native Americans, 20.8 percent of African Americans, and 17.6 percent Hispanics as compared to 10.1 percent of whites). Stunningly, 5.3 percent of the total U.S. population live in deep poverty, with incomes less than 50 percent of the government’s arbitrary poverty threshold figures. For a family of four, deep poverty means an income of $13,249 or less per year. On a separate metric, approximately 11.1 percent of American households don’t have enough food.

Although the Census Bureau isn’t expected to release data on over- and undercounting among racial and ethnic groups until December of this year, it’s these folks who are more likely to have been left out of the 2020 census — and thus whose voices will be disproportionately silenced in national politics over the next decade.

So far, as a result of the 2020 census count, Texas gained two more votes in Congress and the Electoral College. Colorado, Florida, Montana, North Carolina and Oregon each grabbed one seat. California, Illinois, Michigan, New York, Ohio, Pennsylvania and West Virginia are each down one. According to an expert inside the Census Bureau, “If New York had had 89 more people, they would have received one more seat.” Minnesota got that vote in the House instead. 

Make no mistake: This was a major coup for Team Trump.

Article I, Section 2 and the 14th Amendment to the Constitution together require that Congress count all whole persons every 10 years, and that such data be used to determine how many people each state gets to send to Congress within the 435 total established by statute. It also sets how many federal dollars will go to residents of each state over the next 10 years, and how many votes in the Electoral College each state receives — and thus their respective influence on who becomes the next president. 

Ultimately, the clerk of the House is charged with certifying the census numbers and officially reporting them to the states. But robust litigation over the 2020 census numbers is likely, particularly given next year’s midterm elections and the Democrats’ already razor-thin majorities in both chambers. 

In 2019, the Trump administration lost its U.S. Supreme Court bid to include a citizenship question on the census form, which would have involved defining the express constitutional term “person” as limited to “citizens.” Undeterred, in July 2020, Trump announced that the Census Bureau would exclude from its official count anyone living in the United States without legal authorization, a total that hovers around 22 million people. That decision was challenged all the way to the Supreme Court, as well, which refused to consider the case on the rationale that it was unclear whether the Trump administration could “feasibly implement the memorandum in any event” — after all, there was no citizenship data collected. Justices Sotomayor and Elena Kagan joined Justice Stephen Breyer’s dissenting opinion.

So, what’s at stake in all this for every American? Yet again, it’s the fate of self-governance itself. For now, Congress is too polarized to function, with one major political party embracing a platform based on the Big Lie around the 2020 election and the systematic rollback of voters’ access to the ballot. As a consequence, everything else people care about — from policy reform on gun rights, voting rights and immigration, to health care, infrastructure and police reform — is likely to go nowhere in the Senate for the unforeseen future. And ultimately, the hamstrung 2020 census could dictate whether these categories of reforms even see the light of day in the House of Representatives, as well.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.
Tags 2020 Census Census citizenship question Congress COVID-19 Donald Trump Elena Kagan Gerrymandering low-income families Redistricting Sonia Sotomayor Stephen Breyer Supreme Court

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