Why the Census Citizenship Question Matters

By Mike Hunter | April 23, 2019

Much noise has been made about reinstating a citizenship question on the 2020 census, the subject of Tuesday’s Supreme Court arguments. The objections to the citizenship question revolve around unjustified hysteria and the unfortunate, but growing, notion that citizenship doesn’t matter. As attorney general of Oklahoma, I filed an amicus curiae brief joined by 16 other states in support of the citizenship question, in part to bring some sober thinking that should quell the unreasonable panic.

Let’s start with the Constitution: It gives Congress the power to conduct the “Enumeration … in such Manner as they shall by Law direct.” Congress, in turn, has by law delegated this authority to the secretary of commerce — authority that the Supreme Court characterizes as “virtually unlimited discretion.” So the Constitution certainly allows demographic questions, including about citizenship, beyond a simple enumeration.

That is why the census has always asked demographic questions, and the majority of censuses in U.S. history have inquired about citizenship in one form or another. This means that the Census Bureau has asked a U.S. resident about citizenship over a billion times. And courts for over a century have upheld the practice. The arguments against the citizenship question, then, mirror those rejected by the Supreme Court in the Trump v. Hawaii entry ban case last year: “It’s lawful for any administration to do this, just not this administration.”

To make their case, the plaintiffs and the lower courts in this case rely on estimates by Census Bureau staff that a citizenship question will cause millions of immigrants to go uncounted. But as the states explain in our amicus brief, these numbers are based on unwarranted assumptions that are reckless and irresponsible. Commerce Secretary Wilbur Ross was right to question the validity of these estimates by looking critically at the underlying data rather than taking them at face value. Indeed, other data presented by the bureau’s experts showed that undercount caused by the citizenship question ultimately may be only 0.001% of the population. As the Census Bureau’s chief scientist testified at trial:  “There’s no credible quantitative evidence that the addition of a citizenship question will affect the accuracy of the count.”

Nor does it make much sense to impute, as many do, nefarious motives behind the citizenship question. Individual census responses cannot be shared with law enforcement, including immigration officials, and prison time awaits anyone who tries to reveal this data. Even if ICE knew where all immigrants lived, how would they sort out which of those are undocumented? Would this data be that much more dangerous than the data on Hispanic origin, which the census already collects? Nor is this a plausible scheme to harm the funding and representation of blue states, since some of the largest illegal immigrant populations are in red states like Texas, Florida, Georgia, and Arizona. These theories don’t hold water.

It is true, of course, that every question on the census comes with costs and every census has experienced an undercount, including the one conducted by the Obama administration in 2010, which disproportionately undercounted large numbers of Hispanics. The only difference with the citizenship question is the fear and loathing fomented by its critics, which may worsen the undercount they so decry. Instead, pundits and public officials should be spreading the word that responding to the census is a legal requirement, and that accurate responses put no one in any legal jeopardy.

What of legitimate purposes of the citizenship question? It is premised on what should be an anodyne idea: that citizenship still matters. Citizenship grants the right to vote in our democracy. Better citizenship data is undeniably useful, especially in the Voting Rights Act context. That is why, in addition to the Department of Justice, 16 states requested the citizenship question from Ross. But this fact — and so many others detailed above — went assiduously ignored by the lower courts, which instead choose to cherry-pick arguments only from the question’s critics.  Let’s hope the Supreme Court doesn’t make the same mistake.