The Citizenship Question and the 2020 Census

Consistent with their view of the importance of representational government, the Founders established in the U.S. Constitution that every person in the United States would be counted every 10 years to determine the number of representatives that each state would have in the House of Representatives. This decennial counting, known as the U.S. Census, has been conducted since 1790. In addition to determining the number of representatives each state will receive, Census data is crucial for allocating billions of dollars in federal funding annually and addressing barriers to equal opportunity in voting rights, education, housing, and criminal justice.

Shortly after the first U.S. Census, the Founders became concerned that undercounting might have distorted the results. But these concerns did not extend to the undercounting of African-American people. At that time, enslaved African Americans were treated as only three-fifths of a person and excluded by law from representation. While the three-fifths calculation was eliminated by the Fourteenth Amendment, the undercounting of African-American people has persisted over time, including through the most recent censuses. Undercounting has enormous practical implications. Accurate Census data is essential to the equitable allocation of political representation and government resources.

For the last 70 years, there has not been a citizenship question on the decennial census that is distributed to all households. However, in 2018, the Trump administration announced that a citizenship question would be added to the 2020 Census. The administration claimed that the question would help the government enforce the Voting Rights Act of 1965 (VRA), which removed barriers preventing African Americans from exercising their right to vote. The basis for this assertion was a December 2017 letter from the Justice Department (DOJ) requesting that the citizenship question be added to the Census.

The administration’s assertion was without support. Data, including information from the Commerce Department (of which the U.S. Census Bureau is a part), showed that the citizenship question would lead to a significant undercount of the U.S. population, especially in immigrant communities and communities of color. Additionally, there was evidence that the Commerce Secretary had not considered the DOJ letter in making his decision to include the question.

Maintaining that this undercounting would have devastating consequences on immigrant communities of color and noncitizen persons, LDF filed an amicus brief urging the Court not to allow the question to be added and arguing that it had no relationship to VRA enforcement.

In one of the most watched cases of this term, the Supreme Court ruled that the citizenship question may not be added to the 2020 Census at this time. While the Court said that the Secretary of Commerce might be permitted to ask the question if he had a valid reason for doing so – even if the question would reduce participation rates – the Court rejected the administration’s justification as “contrived.”

This decision is an important win for civil rights groups and for democracy. In fact, Justice Breyer cited LDF’s amicus brief in his concurring opinion joined by Justices Ginsburg, Sotomayor, and Kagan to support the conclusion that the citizenship question would “not help enforce” the VRA. However, the administration continues to look for a “path forward” to allow it to use the citizenship question on the 2020 Census with a new rationale.