• Trump administration wants to add citizenship question to 2020 census

• Would suppress response rates and under-count minorities, opponents say

• California, New York suing to stop question from appearing on census

The Trump administration’s after-hours announcement March 26 that it intends to add a question about citizenship to the 2020 census ignited an immediate and intense response from blue states.

California sued the administration that same day to stop the citizenship question from appearing on the upcoming census. New York Attorney General Eric T. Schneiderman announced March 27 that he’ll lead a multi-state effort to do the same thing.

“The Trump Administration’s reckless decision” will “create an environment of fear and distrust in immigrant communities,” Schneiderman said.

The administration and its defenders, though, argued that the change will actually help minority communities. The question will allow the Justice Department to gather more specific information in order to better police minority voting rights, Hans A. von Spakovsky, of the conservative Heritage Foundation, Washington, told Bloomberg Law.

The idea that the Trump administration—which has proactively tried to suppress voter turnout—is doing this to help minority communities is both “laughable and disingenuous," Kathay Feng, of the watchdog group Common Cause, told Bloomberg Law.

The move is just a political attack, meant to hurt Democrat-led states, Jeffrey M. Wice, of Sandler Reiff Lamb Rosenstein & Birkenstock P.C., Washington, told Bloomberg Law. Wice has frequently represented Democrats in redistricting disputes.

Nuts and Bolts

The U.S. Constitution requires the federal government to carry out a once-a-decade count of the population “of all 50 states, the District of Columbia, Puerto Rico and the Island Areas,” the U.S. Census Bureau said on its website. Article I, Section 2, Clause 3 requires the “actual enumeration” of all persons “every subsequent term of ten years, in such manner as they shall by law direct.”

The census is used to “determine the number of seats for each state in the U.S. House of Representatives” and to “distribute more than $675 billion in federal funds each year,” according to the Census Bureau.

For the first time in 2010, the census was conducted by sending a single 10-question questionnaire to all households in the U.S.

The Census Bureau, which is part of the Department of Commerce, carries out the census under Congressional supervision.

The bureau must “notify Congress of the planned subjects for the census no later than three years before that census, and of the specific wording of questions to be asked no later than two years before that census,” its website said. The specific wording of questions to be asked on the 2020 census are therefore due March 31.

Asked Before

There’s no dispute that non-citizens should be counted by the census, von Spakovsky said. The only issue is whether the census should ask about citizenship status.

There’s a concern that the question will scare individuals from responding to the census, and possibly not be counted in the final tally.

But under federal law, the bureau can’t use information for purposes unrelated to the census, von Spakovsky said. Moreover, the bureau can’t hand over the information to anyone in a way that would personally identify census respondents .

So it’s not like the Census Bureau is going to turn this information over to the Department of Homeland Security, von Spakovsky said.

Moreover, the census “consistently asked citizenship questions up until 1950,” and another survey conducted by the Census Bureau continues “to ask citizenship questions to this day.”

That survey, the annual American Community Survey is based on the long-form census survey sent to only selected households before the 2010 change.

That survey “provides current data about all communities every year, rather than once every 10 years,” but is sent to only about 1 in 36 households, von Spakovsky said.

Minority Rights

Adding the question to the census would give the Department of Justice better information to combat voter discrimination, the administration said.

DOJ polices the Voting Rights Act, which seeks to protect minority voters, von Spakovsky said. In particular, the act requires that voting districts be drawn to allow minority candidates to elect candidates of their choice, he said.

To measure that, the DOJ looks, in part, at the number of minority voters in a particular district, von Spakovsky said. But, of course, the DOJ only looks at eligible voters—U.S. citizens who are 18 and older and otherwise qualified to vote.

Now, the DOJ relies on the citizenship data from the American Community Survey to get at that number.

But the American Community Survey is only a sampling of the population, von Spakovsky. Putting the citizenship question in the census, which gathers actual numbers, would give the DOJ more accurate information to better police the Voting Rights Act, von Spakovsky said.

Smoke and Mirrors

The VRA rationale is only a smoke screen, Wice said.

The question is intended to scare individuals so they don’t respond to the survey. This will under-count minority populations and hurt states generally led by Democrats, Wice said.

California stands to lose billions of dollars in federal funding as a result of an under-representative census, it said in its lawsuit. The state could even lose one of its Congressional seats, it said.

The administration violated the Administrative Procedure Act when it decided to add the question without testing whether doing so would depress response rates, the state said.

The Census Bureau typically spends years testing and debating the questions to include in the census, Wice said. The administration can’t spin around on a dime and add in the question without going through the steps laid out in the Administrative Procedure Act first, he said.

Feng suggested that other states may challenge the new question on equal protection grounds. The clear intent of the new question is to erode confidence in the census and under-count minorities, she said. That’s discriminatory, Feng said.

What’s Next?

Testing on the census is already underway, so time is of the essence, Wice said.

That testing, known as the end-to-end census test, is the only opportunity for the bureau to test how questions will affect the rate and quality of responses, Wice said. If the citizenship question is included in the 2020 census, there will be no empirical data on how it affects responses, risking the possibility that there is a drastic drop in the accuracy of the census.

Even if the administration pushes forward with its attempts to put citizenship on the census, Congress could still push back, he said.

Congress must approve the questions on the census, Wice said, so a fight there is likely.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com