Census Watch 2020: The Constitutionality of a Citizenship Question

By: Monet Valdez

The United States Supreme Court is the most powerful judiciary body in our nation. Nine Justices sit atop the high court and make decisions that become the law of the land. The Court recently decided whether or not to add a citizenship question to the 2020 Census. It is important that we understand the significance of that decision.

In December 2017, Chief Overseer of Voting Rights Issues at the Department of Justice (“DOJ”), John Gore, wrote a letter to Secretary of Commerce at the Department of Commerce,  Wilbur Ross, requesting that a citizenship question be added to the 2020 Census. The DOJ explained a citizenship question is needed to better enforce the Voting Rights Act. This attracted a lot of attention in today’s immigration political climate as it highlights Trump’s anti-immigrant policies.

If you’re not buying the “it will be good for the Voting Rights Act” agenda, I don’t blame you. The real reason the DOJ might want to ask, “Are you a citizen of the United States?” on the 2020 Census is representation and money. According to the Census Bureau, a goal of the census is to collect geographical data determining the amount of Congressional seats given to each state. Another goal is to determine how more than 600 billion dollars in federal funding is allocated. Any person in the country, regardless of nationality or citizenship status, is instructed to answer the census.

If the U.S. adds the citizenship question, many non-citizens could choose to ignore the census because of their fear of repercussions. The news is flooded with Trump’s anti-immigrant rhetoric and those with non-citizen status are living in constant fear of being apprehended, questioned, or worse. Lack of responses would heavily skew the political maps across the nation, particularly in states with large populations of Latinos and other immigrants. This translates to less allotted seats in the House of Representatives and less federal funding. Federal funding is one of the life sources of states’ social services, education, and healthcare.

California, Maryland, and New York all issued decisions blocking the addition of a citizenship question on the 2020 Census. On January 15, 2019, Judge Jesse Furman of New York’s Southern District issued a decision ruling Secretary Ross’s call to add a citizenship question was not only unlawful, but also unconstitutional. The Department of Commerce filed a prompt appeal on January 30, 2019 directly to the Supreme Court. They argued they needed to bypass the normal appeals process because the June 30 deadline for the production of the 2020 Census was quickly approaching.

On April 23, 2019, the Supreme Court heard both parties’ oral arguments.

The New York Immigration Coalition (“NYIC”) filed a motion for sanctions against the Department of Commerce under the original district court case (State of New York v. Department of Commerce) because new evidence was discovered demonstrating the political motivation behind the citizenship question and it appears the Department of Commerce concealed that evidence. The NYIC concurrently filed with the Supreme Court notifying them of the motion under the original case. The motion requests Judge Furman to decide whether sanctions should be issued against the Department of Commerce because Secretary Ross’s sworn testimony during that trial contradicts the new evidence.

The new evidence shows Republicans have a different agenda for adding the citizenship question than enforcing the Voting Rights Act. According to the motion:

“The new evidence reveals that Dr. Thomas Hofeller, a longtime redistricting specialist, played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, [‘]Republicans and Non-Hispanic Whites,[’] and that Petitioners obscured his role through affirmative misrepresentations.” (emphasis added)

In other words, adding a citizenship question is a calculated move by individuals within the GOP to cripple the Democratic party’s political power and money.

The NYIC may not win their motion for sanctions. In fact, Judge Furman declined to rule on the motion because the Supreme Court case was pending, but this was still be a win for the NYIC. The new damning evidence against Secretary Ross and the Department of Commerce was put on the Supreme Court’s radar.

On June 27, 2019 the Supreme Court issued their opinion affirming the United States District Court for the Southern District of New York’s decision to not add the citizenship question. The Court found “a significant mismatch between the Secretary’s decision and the rationale [to add the citizenship question] he provided.” Chief Justice Roberts wrote that the Department of Commerce and Secretary Ross do have the power to add the citizenship question, but in this specific case the agency’s action was not justified by the reasoning they gave.

This is cause for celebration, but we must continue to pay attention to important decisions like these. We are in a time where millennials constantly fight for representation across the board. Adding a citizenship question seeks to undercut representation and to ignore large parts of our population. The Supreme Court’s decision leaves the door open for the Department of Commerce and Secretary Ross to come up with another rationale to add the citizenship question, and if added it will likely cost millions of responses.  

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