The Census and Citizens: California Challenges Citizenship Question

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Commerce Department has announced that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950. Commerce Secretary Wilbur Ross announced the change of policy in a letter which states the change is at the request of the Department of Justice (DOJ) in order to gather data regarding the "citizenship voting age population" (CVAP) to determine violations of section 2 of the Voting Rights Act (VRA).

The first count of the complaint  in California v. Ross alleges a constitutional violation:

34. The Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.

35. By including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution. Because the question will diminish the response rates of non-citizens and their citizen relatives, California, which has the largest immigrant population in the country, will be disproportionately affected by the census undercount. Inclusion of the question thus directly interferes with Defendants’ fulfillment of their constitutional responsibility, as delegated by Congress, to conduct an “actual Enumeration” of the U.S. population.

36. This Violation harms the State of California and its residents, given that the State is entitled under the Constitution to a proportionate share of congressional representatives based on its total population.

In support of diminished response rates and the resultant undercount, the complaint includes in its allegations statements from the letter of Secretary Ross (as well as attaching the letter) in which Ross states that he

"carefully considered the argument that the reinstatement of the citizenship question on the decennial census would depress response rate. Because a lower response rate would lead to increased non—response follow—up costs and less accurate responses,this factor was an important consideration in the decision-making process. I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate."

In other words, a lower response rate is acceptable. Although the Ross letter continues that "limited empirical evidence exists about whether adding a citizenship question would decrease response rates materially."  Exhibit 2 to the Complaint is a Memorandum from the Center for Survey Measurement (CSM), a division within the Census Bureau, which raised concerns in September 2017 regarding response rates in current conditions even before the citizenship question would be added.

The Constitution Accountability Center's David Gans has a rather extensive memo posted last week, The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons, which uses originalist and practical rationales to argue that a citizenship question on the census is unconstitutional.

[image: Norman Rockwell, The Census Taker]