Newswire : Supreme Court to decide soon on Census question

By Shaleen Shah

Special to the Trice Edney News Wire from Howard University
News Service

( – The Supreme Court is poised to decide if the Trump administration acted improperly when it added a citizenship question to the 2020 Census, following oral arguments in which the court’s conservative majority appeared likely to say that the administration did not.
Commerce Secretary Wilbur L. Ross Jr. added the question last year, saying it would provide information to better enforce the Voting Rights Act of 1965. Critics have challenged that explanation, saying the real reason for adding the question was to discourage participation by noncitizens and persons living in Hispanic communities.
Judges in three lower federal courts have blocked the addition of the question, but the administration sought a definitive determination by the high court before the court’s current session ends in June, which also is when the Census questionnaires are to be printed.
“In an expanded, 80-minute oral argument [April 23] that exposed huge divisions among the justices, the court’s conservatives didn’t buy arguments that …Ross’ plan was illegal or unconstitutional,” USA Today reported. “They didn’t question his motives or reasoning despite three lower court rulings against him.”
“By the argument’s end,” The Los Angeles Times reported, “it appeared the high court would hand down a 5-4 ruling for the Trump administration…”
At the heart of the dispute is the 14th Amendment to the Constitution, which was passed after the Civil War, and prescribed how seats in the House of Representatives should be allocated.
Section 2 of the Amendment contains what is called the Enumeration Clause, stating the purpose of the once-every-10-years tally: “Representatives shall be apportioned among the several states according to their numbers, counting the whole number of persons in each state, excluding Indians not taxed.”
In the years since, the Supreme Court has consistently ruled that “the whole number of persons in each state” makes no distinction between those who are citizens and those who are not.
When Ross announced the addition of the question last March, he said that the Justice Department had requested the information in order to help it determine if state, local and federal governments were in compliance with the guidelines of the Voting Rights Act.
Judges in the three lower court cases ruled that linking the question to the voting rights measure was only an excuse to inject into the census a question that would discourage many from filling out the questionnaire and result in a less accurate count.
The resulting undercount could lead to a reduction of voting strength and a loss of federal funds to areas with significant Hispanic populations—areas that have voted more Democratic than Republican.
“The Administrative Record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households,” U.S. District Court Judge Jesse M. Furman in New York wrote in January.
Two months later, U.S. District Court Judge Richard Seeborg in San Francisco said that “the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with the law.”
Seeborg said Ross “insisted” on adding the citizenship question, even though professional staffers in the Census Bureau warned that including it “would likely result in a significant differential decline in self-response rates within noncitizen and Latino communities and that the requested data could be obtained by other means.”
The third lower court ruling came in late March from U.S. District Court Judge George J. Hazel in Maryland, who said the government failed to properly follow administrative law when it added the question.
“The unreasonableness of Defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political consideration that motivated the decision and the clear pretext offered
to the public,” Hazel wrote.
The administration has stood its ground. “Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans,” Kelly Laco, a Justice Department spokeswoman, said in the wake of the New York ruling.
The administration has repeatedly asserted that Ross, as commerce secretary, had the authority to add a question to the census and that in all but one census from 1820 to 2000, there was a query about citizenship or country of origin.
The House Committee on Oversight and Government Reform is conducting its own investigation of the procedure Ross followed.
“You have testified that you added the question ‘solely’ in response to a December 2017 request from the Department of Justice,” Committee Chairman Rep. Elijah E. Cummings (D-Md.) wrote in a March letter to the secretary, “but the record contradicts your claim, showing that you began orchestrating a campaign to add the citizenship question just days after taking office” much earlier in that year.
The committee issued subpoenas April 2 to Ross and Attorney General William P. Barr for more data on the decision to add the question, and for a deposition by a deputy attorney general in the civil rights division of the Justice Department.
The department responded that it would not comply with the subpoena to depose John Gore, the deputy attorney general unless a department lawyer could be present at the deposition.
Cummings has said that Gore could bring a personal attorney with him, but that “the Committee’s rules—which have been in place for more than a decade under both Republican and Democratic chairmen—prohibit Department of Justice lawyers from attending.”
All 22 Democrats on the committee voted to issue subpoenas. “The Democrats want to interfere with the court case,” Rep. Jim Jordan (R-Ohio), the ranking minority member of the committee, complained. “Why don’t Democrats want to know if you’re a citizen of this country or not?” Republican Justin Amash of Michiganwas the only Republican to vote with the majority.
The judge in the San Francisco case pointedly suggested that an intentional effort to produce a less accurate count could be seen as a willful violation of a Constitutional directive.
“[If] the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge,” Judge Seeborg wrote.
The Supreme Court announced shortly after Seeborg’s ruling that it would decide on the Constitutional issues involved in addition to those pertaining to administrative procedure. Judge Hazel, presiding in the Maryland case, rejected claims by the plaintiffs that addition of the question was intended to discriminate against communities of color, and was also a deliberate effort to undercut the Constitutional rights of noncitizens.
The Associated Press has reported that the Census Bureau plans to augment the data it collects next year with information from the Department of Homeland Security on the citizenship status, birth dates, Social Security numbers, and addresses of millions of immigrants, including those who are not citizens.
Analysts in the bureau had told Ross during internal discussions regarding a citizenship question that this information was readily available and more accurate than responses to a question on the Census might be.
“This type of information-sharing agreement is a customary, long-standing practice among federal agencies and is permitted under the law,” DHS spokeswoman Jessica Collins told The Washington Post.
“The information is protected and safeguarded under applicable laws and will not be used for adjudicative or law enforcement purposes,” Collins said.
Nevertheless, some maintain that inclusion of a citizenship question in and of itself could be frightening to some.
“It’s understandable that it’s alarming,” Terri Ann Lowenthal, a former member of a House committee overseeing the Census who has advised some of the groups opposed to the citizenship question, told The New York Times.
“Given the anti-immigration policies of the administration, people who are fearful for their security and their status would see this as another possible effort to harm them.”

Newswire Census 2020: For all to count, all must be counted

By Stacy M. Brown, NNPA Newswire Correspondent

While every Census faces challenges and even controversies, the count remains important because it’s the federal government’s very first responsibility to the U.S. Constitution, the cornerstone of the nation’s representative democracy and America’s largest peacetime activity, said Terri Ann Lowenthal, a consultant to many census stakeholders and former staff director for the U.S. House Subcommittee on Census and Population.
However, Lowenthal believes the 2020 Census is heading into “a perfect storm.”
“I think of unprecedented factors that could thwart a successful enumeration – one that counts all communities equally well,” said Lowenthal, who consults on The Census Project, a collaboration of business and industry associations; civil rights advocates; state and local governments; social service agencies; researchers and scientific societies; planners; foundations; and nonprofits focused on housing, child and family welfare, education, transportation, and other vital services.
“The risks include cyber-threats foreign and domestic, IT failures, weather events that have become more extreme, disinformation campaigns, and the unknown consequences of adding a new, untested citizenship question,” she said.
The official kick-off to the 2020 Census begins Monday, April 1 in Washington where the U.S. Census Bureau will host a live operational press briefing to mark the one-year out milestone from the 2020 Census.
Bureau Director Dr. Steven Dillingham and others in leadership plan to brief the public on the status of operations and provide updates on the success of the integrated partnership and communication campaign.
Lowenthal said the unknown consequences of adding a new, untested citizenship question are among the growing challenges facing the 2020 Census. This question is before Federal courts and will be resolved before next year’s Census.
She noted other challenges including consistent underfunding and President Trump’s budget request for next year, which is well below the amount needed; distrust of government at many levels; and fear among immigrants that their census responses will be used to harm them and their families.
“An inclusive, accurate census is especially important for Black Americans and other people of color,” Lowenthal said.
“The census determines the distribution of political power, from Congress, to state legislatures, to city councils and school boards, and guides the allocation of almost $9 trillion over the decade in federal assistance to states and communities for hospitals, public transit, school facilities, veterans services, Medicaid, school lunches, and many other vital services,” she said.
Unfortunately, advocates say the census is not an equal opportunity enumeration.
Scientific yardsticks since 1940 reveal that the census misses Black Americans at disproportionately high rates, especially Black men ages 18 to 49 and Black children under age five.
“At the same time, the census over-counted non-Hispanic Whites in 2000 and 2010. And because the people who are more likely to be missed do not live in the same neighborhoods as those more likely to be double-counted, some communities get more than their fair share of political representation and resources, while others get less than they deserve and need,” Lowenthal said, adding that we then must live with those results for the next ten years.
The Census is a civil rights issue with huge implications for everyone, particularly people of color, added Beth Lynk, the director of the Census Counts Campaign at The Leadership Conference Education Fund.
“Census data are used to draw congressional district lines and help determine the amount of federal funding communities receive for programs like Head Start and SNAP,” Lynk said.
“Communities that are missing from the census lose out on what they need to stay safe and healthy. Unfortunately, Black people and Latinos are considered to be harder to count, and accurately counting these populations takes a focused effort,” she said.
Lynk added: “That’s why it’s critical that local governments and community organizations educate their own constituents and members and encourage them to be counted.”
Census data are inherently personal; the data record and codify individual stories, and help to paint a mosaic of rich racial, ethnic, cultural, and geographic identities, said Jason Jurjevich, Assistant Director of the Population Research Center, a research institute in the College of Urban and Public Affairs at Portland State University in Oregon.
“Telling the story of diverse communities, including individuals of color, requires a fair and accurate count,” Jurjevich said.
“As with any census, an all too common obstacle is that some individuals are excluded, resulting in an undercount. In the 2010 Census, considered one of the most accurate censuses in recent American history, 1.5 percent of Hispanics and 2.1 percent of African-Americans were undercounted,” he said.
Jurjevich added that among African-American men, ages 30 to 49, the undercount was much higher, at 10.1 percent.
The decennial census is the one chance, every ten years, to stand up and be counted, Jurjevich added.
Also, he noted that Census 2020 will offer the first-ever online response option, which could improve census response rates and, at the same time, numerous challenges and barriers will likely make it more difficult to count Americans in the 2020 Census.
“This means that communities will need to organize and address on-the-ground challenges like the proposed citizenship question, increasing public distrust in government, growing fears among immigrants about the current sociopolitical climate, the first-ever online response option and concerns around the digital divide and security of personal data, and inconsistent and insufficient federal funding,” Jurjevich said.