Article One of the Constitution provides that members of Congress shall be apportioned among the states “according to their respective Numbers.” That Article also requires a census every ten years in order to count how many persons reside in each state.
Originally, the words “respective Numbers” referred to “free Persons” plus “three-fifths of all other persons,” the latter referring to slaves. After the Civil War, the Fourteenth Amendment eliminated the notorious “three-fifths” clause and established the requirement that the apportionment of congressional members from the states be determined “according to their respective numbers, counting the whole number of persons in each State.”
The words “whole number of persons” seem clear enough. When the Constitution refers to “citizens” or “the right to vote,” it uses those words. For example, the Nineteenth Amendment, ratified in 1920, says that the right of citizens to vote may not be denied on account of sex. And, within the very same paragraph, the Fourteenth Amendment uses the word “citizens” when granting birthright citizenship to persons born in the United States, and the words “any person” when prohibiting the states from denying life, liberty, or property without due process of law, or denying equal protection of the laws.
The Census Bureau is part of the Department of Commerce, and the present Secretary of Commerce is a man named Wilbur Ross, a former banker who specialized in buying and reselling bankrupt companies. Ross won’t be doing the actual population counting himself, but he is the person in charge, and that has led to a remarkable conflict over including a citizenship question in the Census Bureau’s questionnaire for the 2020 Census. For much of our history, the Census Bureau’s questionnaire did include a question about citizenship status, but the Bureau took it out in 1960 based on data showing that the question resulted in undercounting members of “hard-to-count” groups, especially noncitizens and Hispanics. Now, over the objections of the Census Bureau, six of its former Directors, and countless groups from all sides of the political spectrum, Secretary Ross wants to reinstate that question.
The stakes are high because the result of that census will determine which states gain, and which states lose, congressional districts. This, in turn, will apportion the 435 congressmen and women among the fifty states. (It will also affect the allocation of billions of dollars of federal aid to the states.)
On January 15, 2019, Judge Jesse Furman, a federal judge in the Southern District of New York, issued a decision in State of New York v. Department of Commerce. The name of the case doesn’t tell the whole story. The case was brought by 18 states, the District of Columbia, 15 cities and counties, and several nongovernmental organizations, all protesting the citizenship question. The principal defendant, as you might expect, is Wilbur Ross.
Judge Furman’s decision, a mind-numbing 277 pages including 88 footnotes, describes government run amok.
Secretary Ross claimed he was adding the citizenship question because the Department of Justice (DOJ) asked him to do so, supposedly so that it could do a better job enforcing the Voting Rights Act. The facts, unearthed during an eight day bench (non-jury) trial and based almost entirely on the government’s own documents, tell a far different story.
In a scathing opinion, Judge Furman found that Secretary Ross “blatantly” violated the federal census law by failing to follow the proper procedures and by failing to notify Congress, as the law requires, that he intended to include the citizenship question. Ross’s actions were, in the judge’s words, arbitrary and capricious “several times over,” he “ignored, cherry-picked, or badly misconstrued the evidence,” he “acted irrationally,” and he concealed the true basis for his decision – all of which the judge called a “veritable smorgasbord” of federal law violations.
Moreover, the trial record included undisputed evidence that the Attorney General didn’t initiate this brouhaha in order to promote voting rights, but the very opposite. Ross went looking for someone outside his Department, and he ultimately found a DOJ political appointee willing to write a letter requesting the addition of the citizenship question. Shades of President Trump asking Deputy Attorney General Rod Rosenstein to write a letter justifying the James Comey firing, only to have Trump acknowledge the pretext by telling Lester Holt on NBC News that his real motive for getting rid of Comey was “the Russia thing.”
The Trump administration is doubling down. On January 25, the DOJ asked the Supreme Court to bypass the Court of Appeals, take the appeal directly, hear the case in April, and issue a decision before the June deadline for printing the census questionnaire. This is, according to the government, a case of “imperative public importance” that simply can’t wait. How the country managed to get through the last several censuses the DOJ does not tell us.
Judge Furman’s decision rests on federal administrative law, but make no mistake. The Wilbur Ross citizenship question has profound constitutional ramifications. The government’s own data show that if the question becomes part of the 2020 census, the result will be a serious undercount of “the whole number of persons,” largely minorities and immigrants who tend to live in urban areas that elect Democrats. Such an undercount would benefit rural Republican-leaning states.
The Constitution points the other way. Members of Congress represent not just citizens but all persons who reside in their districts, and it a constitutional imperative that we count every man, woman, and child irrespective of citizenship. If it were otherwise, those who wrote and later amended the Constitution would have used different language. We allow the executive branch to tinker with the fundamental principles of our democracy at our peril.