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Thursday, July 21, 2022

Citizenship and the Census

 Sam Levine at The Guardian:

Donald Trump’s administration tried to add a citizenship question to the decennial census as part of an effort to alter the way the US House’s 435 seats are divvied up among the 50 states, a new tranche of documents reveals.

The documents, released by the House oversight committee on Wednesday, offer the clearest evidence to date that the Trump administration’s public justification for adding the question was made up. For years, the administration said that it needed to add a citizenship question to the decennial survey because better citizenship data was needed to enforce the Voting Rights Act (VRA). The US supreme court ultimately blocked the Trump administration from adding the question in 2019, saying the rationale “seems to have been contrived”.


Excluding non-citizens from the apportionment count, and therefore diminishing their political representation, has long been a goal of hard-right immigration groups. It would have clear political impact: California, Texas, and Florida all would have lost out on a congressional seat if unauthorized immigrants were excluded from apportionment, a 2020 projection by Pew found. Alabama, Minnesota, and Ohio all would have been able to hold on to an additional seat.

Commerce secretary Wilbur Ross became interested in adding a citizenship question shortly after taking office in 2017.

That year, James Uthmeier, a commerce department attorney, set out to analyze the legality of adding a citizenship question to the census at the request of Earl Comstock, a political appointee serving in a top policy role at the agency. In an undated memo released Wednesday, he concluded that doing so would not be lawful. The document makes it clear there is little evidence those who drafted the constitution wanted to exclude non-citizens from apportionment.

“Their conscious choice not to except aliens from the directive to count the population suggests the Founders did not intend to distinguish between citizens and non-citizens for the ‘actual Enumeration’ used for apportionment,” Uthmeier wrote in the draft memo.

“Over two hundred years of precedent, along with substantially convincing historical and textual arguments suggest that citizenship data likely cannot be used for purposes of apportioning representatives,” he added. “Without opining on the wisdom of such an action, a citizenship status question may legally be included on the decennial census so long as the collected information is not used for apportionment.”

But in subsequent drafts throughout 2017, Uthmeier and Comstock substantially changed that analysis.

They revised the memo to suggest there was much more ambiguity into whether a citizenship question could be added for apportionment purposes. By August 2017, they turned in a memo to Ross suggesting there was a legal basis for adding the question for apportionment purposes. “There are bases for legal arguments that the Founding Fathers intended for the apportionment count to be based on legal inhabitants,” the new memo said. “If the Secretary decides that the question is needed for apportionment purposes, then it must be included on the decennial.”