Trump administration sabotages the census, gets sued by at least 12 states (Updated)

On Monday, Secretary of Commerce Wilbur Ross announced his decision to add a controversial question on citizenship to the 2020 census came in the face of opposition from career officials at the Census Bureau who fear it will depress response rates, especially from immigrants. Wilbur Ross Overruled Career Officials at Census Bureau to Add Citizenship Question:

It would be the first time since 1950 that the full, once-a-decade census asks people about their citizenship. The Constitution requires a count of all residents of the country every ten years. The Census Bureau conducts a separate detailed survey of a sample of U.S. households that includes questions about citizenship.

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In a memo announcing his decision, Ross said that “The Census Bureau and many stakeholders expressed concern that [a citizenship question] would negatively impact the response rate for non-citizens.”

But Ross added that “neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially.”

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A Commerce spokesman said that Ross “took a hard look” at an alternative proposal by the Census Bureau to get citizenship data without adding the question. But he ultimately decided the proposed method “would provide an incomplete picture.” The Ross memo argues that the value of the data collected from the new question will outweigh any harm.

ProPublica first reported in December that the Justice Department had submitted a last-minute request that the Census Bureau add a question on citizenship to the 2020 survey. The Justice Department argued that better data on citizens was needed to better enforce voting rights protections for minority groups.

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The driving force behind the request for the new question, according to internal emails, was a Justice Department political appointee, John Gore, who spent years as an attorney in private practice defending GOP redistricting maps around the country.

Greg Sargent of the The Washington Post notes:

Here’s something that badly undermines the Trump administration’s defense of the move: a letter from former directors of the U.S. Census Bureau, under both Republican and Democratic administrations, which argues that adding the question now would be “highly risky,” could have “unexpected” consequences and will “considerably increase the risks” of an inaccurate count.

Interestingly, one former Census Bureau official who is cited by the administration in its defense of the move – Robert Groves, the Census Bureau director from 2009 to 2012 – is actually a signatory to the letter denouncing the move

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According to the former U.S. Census Bureau chiefs in their letter, which they sent to Ross in January, they stated:

We strongly believe that adding an untested question on citizenship status at this late point in the decennial planning process would put the accuracy of the enumeration and success of the census in all communities at grave risk. … planning a decennial census is an enormous challenge. Preparations for a census are complex, with each component related to and built upon previous research and tests. …

It is highly risky to ask untested questions in the context of the complete 2020 Census design. There is a great deal of evidence that even small changes in survey question order, wording, and instructions can have significant, and often unexpected, consequences for the rate, quality, and truthfulness of response. The effect of adding a citizenship question to the 2020 Census on data quality and census accuracy, therefore, is completely unknown. … we believe that adding a citizenship question to the 2020 Census will considerably increase the risks to the 2020 enumeration.

The move comes in response to a request from Attorney General Jeff Sessions’s Justice Department. In keeping with that, the memo from Commerce Secretary Wilbur Ross justifying the change tries to portray it as a means of better enforcing the Voting Rights Act, by improving data on who is eligible to vote.

Attorney Joseph Fishkin explains at Balkinization blogspot that this pretextual reason is pure bullshit. The Administration is Lying About the Census:

The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years. There has been a lot of speculation about possible political motivations for this action. It is difficult to know exactly what motivates government actors whose deliberations are not public. But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false. It is not the real reason.

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My sole aim in this post is to explain why the government’s stated reason for adding the citizenship question is false.  To understand this, you need to understand something about the role Census data plays in redistricting.  It plays two completely different roles.

I.

At the bottom of our law of redistricting, since the reapportionment revolution of the 1960s, we have the foundational principle of one-person-one-vote: Each district must have the same population.  The U.S. Constitution requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”  Crucially, it says “whole number of persons,” not citizens.  To make sure each state gets the right number of representatives, and then after that, to draw district lines within states, we need a count of all persons, and it needs to be exact.  For this, we use the Census.

II.

The Voting Rights Act, Section 2, prohibits racial vote dilution, which is drawing maps where members of one racial group have less of an opportunity than others to “elect representatives of their choice.”  This is a much richer and messier concept than equalizing district populations.  To some extent it involves predicting election outcomes.  We must ask questions such as: Is voting racially polarized, so that white voters vote as a bloc to defeat the representatives minority voters choose?  (Section 2 is triggered only when the answer is yes.)  We need to analyze degrees of racial polarization, rates of voter eligibility, registration, turnout, and other factors, in order to determine whether a given district is one where a given minority group of voters will, in fact, be able to “elect representatives of their choice.”  No single data source will ever provide all of the information about all of those factors.  Many of them—turnout, for instance—are epistemically impossible to predict with anything like the degree of precision that is involved in one-person-one-vote.  That is ok.  The goal is not to nail a perfect prediction of an election outcome, which would be impossible.  It’s just to determine whether or not a district gives minority voters an opportunity to elect their candidates.

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The American Communities Survey (ACS) data is perfectly adequate for Section 2 analysis. It’s true that this data is not as granular as census data. It’s not as precise. But it doesn’t need to be. When we are doing Section 2 analysis, what we need is to predict whether a district gives a minority group a good chance of winning—a question that is necessarily approximate. ACS citizenship data is not perfect, but it’s far more accurate than our ability to predict differences in voter registration and turnout in the future over a decade. Thus, tightening up the precision of the citizenship data, which is what the DOJ argues will be gained by moving the citizenship question to the Census, is not in fact going to materially improve our ability to tell which districts are ability-to-elect districts and which are not.

That is why no DOJ official, including political appointees of both parties, from the inception of the enforcement of Section 2, had ever called for adding a citizenship question to the basic Census form, before the current Justice Department called for it.  This step simply is not going to materially improve our ability to enforce Section 2.

What introducing the citizenship question will do is screw up the basic count in predictable ways.  This will, on net, make Section 2 calculations less accurate.  It will increase the nonresponse rate in an uneven way, producing a less accurate picture of where the people are, not only non-citizens but also citizens.  This is likely to have real effects on he distribution of representation and political power.*  The administration knows that a lot of mixed-status families (households with some citizens and some non-citizens), for instance, may refuse to answer the Census at all, and although Wilbur Ross makes much of the fact that the magnitude of this problem is unknowable, from a partisan Republican perspective, it’s all gravy.  The more immigrants refuse to answer the door, the more political power flows toward places with fewer immigrants.  I strongly suspect (and have argued on this blog before) that much of the point of this process may be to set up the next iteration of the Evenwel v. Abbott case—the effort by some Republicans to change the basis of representation, at least at the state level, so that only citizens count, not all persons.

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[W]ithout knowing the precise combination of reasons why the government is doing what it is doing, I simply want to make it as clear as possible, for the record, for journalists, and for anyone trying to understand this somewhat intricate issue, that the government’s claim that adding a citizenship question will aid Section 2 enforcement is false. The claim does not hold up. It is a pretext.

This is why At Least Twelve States to Sue Trump Administration Over Census Citizenship Question:

At least 12 states signaled Tuesday that they would sue to block the Trump administration from adding a question about citizenship to the 2020 census, arguing that the change would cause fewer Americans to be counted and violate the Constitution.

The New York State attorney general, Eric T. Schneiderman, said he was leading a multistate lawsuit to stop the move, and officials in Connecticut, Delaware, Illinois, Massachusetts, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island and Washington said they would join the effort. The State of California filed a separate lawsuit late Monday night.

“The census is supposed to count everyone,” said Attorney General Maura Healey of Massachusetts. “This is a blatant and illegal attempt by the Trump administration to undermine that goal, which will result in an undercount of the population and threaten federal funding for our state and cities.”

The Constitution requires that every resident of the United States be counted in a decennial census, whether or not they are citizens.

Article 1, Section 2 of the United States Constitution provides, in relevant part:

Representatives … 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 [indentured servants], and excluding Indians not taxed, three fifths of all other Persons [slaves]. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

The 14th Amendment, Section 2 provides, in relevant part:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.

The Constitution requires the census to count persons in the United States, not citizens.

Opponents of the added citizenship question said it was certain to depress response to the census from noncitizens and even legal immigrants. Critics accused the administration of adding the question to reduce the population count in the predominantly Democratic areas where more immigrants reside, in advance of state and national redistricting in 2021.

White House press secretary Sarah Huckabee Sanders, lying her ignorant hillbilly ass off, asserted that the citizenship question had “been included in every census since 1965, with the exception of 2010, when it was removed.”

Fact Check: The citizenship question has not been on the general census since 1950. There was no mid-decade census in 1965.  The citizenship question was relegated to a much smaller census survey in 1970. After 2000, the question was asked only on the American Community Survey, a separate poll of a fraction of the population. So literally nothing this ignorant hillbilly said was true.

Critics noted that the citizenship question was added at the last minute — the deadline for proposing new questions for the 2020 head count is April 1 — and that it sidestepped the years of vetting undergone by every other question that will be asked. This month, President Trump’s re-election campaign used the addition of a citizenship question in an emailed fund-raising appeal.

So this was motivated by Trump’s white nationalist anti-immigrant hatred. Just wonderful.

Eric Schneiderman, the New York attorney general, said that adding the question was a “reckless decision to suddenly abandon nearly 70 years of practice.” He argued that the move “will create an environment of fear and distrust in immigrant communities that would make impossible both an accurate census and the fair distribution of federal tax dollars.”

Kenneth Prewitt, a director of the Census Bureau under President Clinton, dismissed the administration’s rationale that the question is needed to enforce the Voting Rights Act.

“It’s certainly unnecessary,” said Mr. Prewitt, now a professor of public affairs at Columbia University. “The Voting Rights Act is being administered very well with data from the American Community Survey. The Justice Department has ruled on that a number of times over the last 15 years.”

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Experts dismissed Mr. Ross’s statement that the citizenship question did not need further testing, arguing that the census and the American Community Survey differ in almost every aspect, from size to public awareness to whether a response is required. “When you do this once every 10 years, for 340 million people, you’ve got to get it right,” said William H. Frey, a University of Michigan demographer.

Congress could put a stop this nonsense with an act of Congress. But would a GOP Congress defy their “Dear Leader” and risk angering his nativist and racist base in upcoming GOP primaries? What do you think. Vote them out.

UPDATE: The Census Scientific Advisory Committee says the addition of the citizenship question would depress the response to the census. 
Census Bureau’s Own Expert Panel Rebukes Decision to Add Citizenship Question.

UPDATE 4/2/18: Seventeen states, the District of Columbia, and six major cities sued the Trump administration on Tuesday over the addition of a controversial new question about US citizenship to the 2020 census. See Complaint (.pdf). This is the third major lawsuit against the administration’s action, after California and the NAACP sued last week, marking a major escalation of the legal and political battle over the census.