Analysis: The Weaponized Census

So far, 2018 has been the time for passionate fights about strange things. Facebook quizzes, self-driving cars, expensive dinner tables, and porn stars have all become critical pieces of the political landscape. The weird has become the mundane, and even the most obscure and arcane pieces of political machinery have had their day as hot-button issues that could define the country’s future.

Add the methods section of the 2020 Census to that improbable list.

On Monday evening, the Commerce Department announced that it would make a controversial change to the next Census that the Trump administration has signaled for months: the addition of a question asking participants about their citizenship status. While citizenship is currently a field in a major interstitial supplemental survey to the Census, the last time it was asked to the entire United States population during the decennial main event was in 1950. But, during the current administration’s crusade against unauthorized immigration and a related campaign against the specter of voter fraud, the Department of Justice in December sent a letter to the Census Bureau asking for the question’s reinstatement, calling it “critical to the Department’s enforcement of Section 2 of the Voting Rights Act and its important protections against racial discrimination in voting.”

In granting that request, the Commerce Department memo announcing reinstatement of the citizenship question in the 2020 Census said that “having citizenship data at the census block level will permit more effective enforcement of the VRA, and Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts.”

The Monday evening announcement sparked renewed criticism from a wide spectrum of political actors, from voting-rights activists to immigration leaders to a coalition of America’s mayors. A blog from the Brennan Center for Justice said that “the move raises serious concerns that the upcoming census will be a major failure.” Following up on a February open letter asking Ross to deny the DOJ’s request, on Tuesday the United States Conference of Mayors decried the decision. Los Angeles Mayor Eric Garcetti declared that “the Constitution and our communities demand better than a mean-spirited attempt to intimidate immigrants and suppress participation in a count that means so much to our democracy.”

At play in the controversy are a number of different issues around both immigration and voting rights. The Justice Department argues that in order to properly enforce its mandate under the Voting Rights Act and avoid dilution of minority votes, it needs the most accurate count of the citizen-age voting population, which it argues can only be gained from asking people about their citizenship in the Census. Opponents of the measure point out that the Census Bureau’s annual supplement to the Census—the American Community Survey—already asks its sample of participants about citizenship, and that measure has been used for decades as the baseline for the citizen-age voting population.

What matters for the Justice Department’s purposes is the accuracy and the granularity of the data. The department argues that will be improved by using the Census instead of the ACS, which has a much smaller sample size and doesn’t allow researchers to peer into the composition of individual blocks, a level of detail that the Census allows.

But polling experts contend that the data extracted from this question will almost certainly be worse than the existing numbers. “Asking about citizenship on the Census is controversial because it is believed that such questions can suppress response among immigrant and other populations,” warned a press release from Kathleen Weldon at Cornell University’s Roper Center for Public Opinion Research. “The polling community is particularly concerned about adding a citizenship question to the Census, because survey researchers rely on accurate population statistics from the Census for weighting surveys.”

Unauthorized immigrants—and even authorized immigrants with undocumented family members—might have good reason to avoid taking this Census or to respond falsely, both of which would severely hamper the quality of data and make the DOJ’s claims moot. For starters, U.S. Immigration and Customs Enforcement is currently involved in a massive dragnet for unauthorized immigrants, enlisting hotels and utilizing convenience stores as sites for stings. Those efforts likely already employ existing data from the ACS on where non-citizens live. Providing data at the block level would allow ICE to locate unauthorized immigrants with greater ease.

That power will be garnered legally. But immigrant advocates are concerned about the potential unethical or extralegal power such data can lend to an anti-immigration regime. The Census Bureau drew fire over a decade ago for providing data tables of Arab Americans in each zip code to the Department of Homeland Security. The Census Bureau does collect identifying information like names and addresses of respondents, but is not authorized to share those data. Still, in times of American turmoil the Census Bureau has broken that mandate.  In 1943, during the mass incarceration of Japanese American citizens, the Bureau complied with a Treasury Department request for the personal records of some such citizens in violation of the Census Act, according to the historians Margo Anderson at the University of Wisconsin–Milwaukee and William Seltzer at Fordham University in New York City.

Such action today would be illegal. But in the past, not all ICE officials have proven scrupulous about data privacy. In an administration facing multiple data leaks, ongoing foreign infiltration into vital data systems, and a tidal wave of ethics concerns, would any non-citizen reasonably trust their data to remain safe?

The Census question could pose numerous other problems, as well. The data-quality issues resulting from immigrant avoidance of the questionnaire will hurt cities most, since a disproportionate share of non-citizens live in urban areas. The Census is the key mechanism for allocating billions of dollars in federal funding. Any undercounts of non-citizens would siphon money away from cities.

The biggest fallout will likely be political. Punishing liberal-leaning cities would offer Trump a victory in his ongoing culture war, even if it comes at the expense of good and useful data. In a political system where population size dictates everything from the distribution of presidential electors to the boundaries of local voting precincts, undercounts could also undermine the political power of immigrant-rich state like California, and of the urban pockets within the Southwestern desert that threaten to make swing states out of Texas and Arizona. California already announced it will be filing a lawsuit to block the new Census measure. (In a Monday op-ed, published before the latest announcement, the state’s attorney general, Xavier Becerra, and its secretary of state, Alex Padilla, had called on the Commerce Department “reject the Justice Department’s dangerous call to add a citizenship question to the 2020 census.”)

Beyond hurting liberal states, cities, and districts, the other political effects will be in the exact arena in which the DOJ claims it will be using the new citizenship question: redistricting. The courts have held that redistricting and congressional apportionment be done by total population—not by citizen population—and a weaker dataset also weakens that constitutional mandate.

The fear for some advocates is that that might be the point. One far-right proposal to ensure conservative—and white dominance—in the coming years has been jettisoning the mandate for population-counting in exchange for a system based solely on counting citizens.

That proposal languished mostly on the fringes—that is until it was taken up wholeheartedly by Kris Kobach, the Kansas secretary of state and the former vice chairman of Trump’s disastrous and ill-fated voter-integrity commission. In a January column for Breitbart, the Kansas politician, whose proposals to ensure white demographic advantage have been deeply influential at the national level, pondered the day “if and when the citizenship question is ever returned to the census, and Congress considers excluding illegal aliens from the apportionment process,” and floated the idea that the current system of apportionment by population might be unconstitutional.

According to the Brennan Center, “by requiring the census to track citizenship status, the administration might be laying the groundwork to push for redistricting based on citizenship figures.” This would face legal challenges, but could provide an irresistible option to Republicans still fighting the demographic tide.

Really, what’s at stake here is the same hard knot of policy questions at the center of many of Trump’s most controversial moves. White-nationalist groups decrying “white genocide” and fearing demographic shifts, anti-immigrant populism, the long reach of old Jim Crow, and plain-old backroom political strategizing all come together here, at the unlikely nexus of the Census. Because the Census, at its core, is the key to democracy. If the Constitution gives power to the people, then the Census is the main mechanism to measure that power. That also makes it an incredibly useful weapon, one with the power to warp democracy in the right—or wrong—hands.