July 6, 2019

Political Shenanigans and the Census

by Hal Gershowitz

Comments Below

Mischief. That’s what the Trump Administration is up to with its insistence on asking respondents to the decennial census questionnaire if they are citizens of the United States. It’s mischievous because the US Census Bureau already collects that information in the enormous, rolling, American Community Survey (ACA) which is on-going every day of every year. Given that the government already collects citizenship information, one might ask why the Administration also wants to inject this question into the constitutionally-required decennial census.

Here’s why. The decennial census is used by the states to determine what changes, if any, are to be made in the number or the distribution of congressional districts throughout the United States. In other words, the census determines what congressional redistricting, if any, is to take place in the country. It is used, periodically, to redraw the map of congressional districts. The decennial census can, and often does, change the number of congressional districts and, therefore, the number of Representatives that comprise the US House of Representatives.

So, what exactly, is mischievous about demanding a citizenship question on the census questionnaire?

A mischievous memo. Thomas Hofeller a Republican gerrymandering specialist, now deceased, penned a report urging the Administration to include such a question. It would have the effect of suppressing responses from immigrants residing in the United States, nearly all of whom could be presumed to lean heavily Democratic. The results would also be used, Hofeller believed, to argue that congressional districts should be based on the number of citizens residing in each district and not the number of residents residing in each district. Hofeller believed such a question would favor Republican candidates for office. But working residents of the United States pay taxes whether they are citizens or not, and we Americans have a long-standing and strongly held view that taxation without representation is fundamentally wrong. Hofeller argued that the citizenship question would clearly favor Republican gerrymandering efforts. Is anyone so jaded that they would urge manipulating the census process for political gain? We jest of course.

What makes this ruse so pernicious is that Article One of the US Constitution is unambiguous regarding the need to count everyone and not just citizens. The accurate count of everyone who calls America home largely determines how federal funds are proportioned back to the States as well as how voting districts are created (and eliminated) with the passage of time.

Specifically, Article 1, Section 2 states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, (and) three fifths of all other Persons (slaves)…” 

Yes, even slaves were to be counted, but only as three fifths of a person. Ironically, the notorious three fifths provision was insisted upon by the northern non-slave states. The southern, slave-holding states wanted their slaves to be counted as whole (non-voting) persons in order to get more federal funds and more seats in Congress. Many people mistakenly believe that the onerous three fifths provision was a racist, southern states requirement. Nope, it was the northern, free states that argued for the three fifths rule.

Secretary of Commerce Wilbur Ross argued, disingenuously we think, for the citizenship question to be included in the census to assist in enforcing the Voting Rights Act. We doubt that was his motive at all. In fact, the language Ross used to support the Administration’s position was, in part, lifted from the Republican Gerrymandering strategist Thomas Hofeller’s report.

President Trump has stated that he is considering using an Executive Order to force the citizenship question into the census survey. That would be a remarkable lapse of presidential judgment…well, maybe not so remarkable. Even Supreme Court Chief Justice John Roberts opined that the Commerce Department provided a “pretextual reason” for wanting the citizenship question that was merely “a distraction,” in violation of the legal requirement that agencies disclose the true reasons behind their decisions.

The census has precluded the citizenship question for the last seventy years, and, today, the on-going, American Community Survey routinely captures citizenship information in a manner that isn’t tied to congressional apportionment or any other partisan objective. We should keep it that way.

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7 responses to “Political Shenanigans and the Census”

  1. Roberta Conner says:

    While true that the American Community Survey asks questions about citizenship in its surveys you neglect to mention that the number of non-responses to that single question have doubled over the past six years.

    The notion that the number of representatives in Congress or infrastructure expenditures should be determined by the number of persons present (legally or not) in a particular geographical area is flawed. That approach demurely accepts as fait accompli the insidious problem of illegal immigration.

    If I throw a block party and purchase an amount of food and drink for those guests on my block, I do not leave the door open so uninvited persons can attend – I simply close the door.

    Representation in Congress and other issues determined by population density should be based only upon the presence of American citizens in the prescribed area.

  2. Hal Gershowitz says:

    Response to Ms. Conner:
    And the non response could be even greater when asked on the census questionnaire, which is why the Administration is pushing it. If Ms. Conner believes issues such as representation in Congress and “other issues determined by population” should be based only upon the presence of American citizens in the prescribed area, she might want to promote a constitutional amendment to accomplish that. The founders apparently didn’t agree.

  3. Steve Marcus says:

    It’s about time someone provided an explanation of why it’s inappropriate (and unconstitutional) to ask the citizenship question in the census. But then again, why should we be concerned about the constitution. It’s a document written over 200 years ago and therefor of little value….unless one believes that everyone should be able to acquire guns of all types without background checks or any other reasonable limitations. In that case it’s literal interpretation becomes very important.

  4. Dan says:


    This question has been asked in almost every census this century. Obama even asked it on the short form. If it wasn’t Trump, no one would argue.

    It is absurd to think that we should not collect this in anyway we can. We can no longer even trust our drivers licenses to guide voting.

    The census data is used for so many purposes, including many real estate decisions for retailers, homebuilders, etc.

    • In Response to Dan: Not so! If the 2020 census form does ultimately ask about citizenship status, it will be the first time the U.S. census has directly asked for the citizenship status of every person living in every household. Given the Hofeller Report to the Administration, urging that the citizenship question be asked as a political ploy to boost Republican standing when the makeup of Congressional districts are recalibrated, we should continue to rely on the ACS survey for citizenship information and not the US Census. Dan’s point that no one would raise this question if Trump wasn’t the person pushing the citizenship question may have merit. Then again, there seems to be little question as to why the Administration is pushing the inclusion of the citizenship question. We agree with Republican Chief Justice Roberts who dismissed the Administration’s rationale as, essentially, a subterfuge.

  5. Robert borns says:

    You have assumed all illegal workers pay taxes. Wrong! Also the decision was 5to4. Obviously it wasn’t cut and dried like you make it sound. Roberts ignored administration comments before the affordable care act decision and now he becomes a stickler on verbiage. Roberts and Ginsberg hate trump based on their public comments. Ginsberg is unfit to be a justice based on her improper anti trump statement in public. She was once great but now a mere shadow.

  6. Hal Gershowitz says:

    Response to Robert Borns:
    No, actually we don’t assume all undocumented workers pay social security taxes. We (and the Social Security Administration) simply assume that the billions of paid-in tax dollars that are paid in without authentic names and tax identification numbers are attributable mostly to undocumented workers. We assume Mr. Borns acknowledges that undocumented workers do pay sales taxes and (directly or indirectly) property taxes and whatever taxes are withheld from their pay.
    We doubt that either Chief Justice Roberts or
    Justice Ginsberg “hate” President Trump regardless of whatever personal opinion they may have of his fitness or judgment, or the manner in which he disparages virtually everyone who voices opposition to his policies or behavior. While Justice Ginsberg may be physically compromised due to illness, we think she’s a giant among legal scholars.

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