EDITOR’S NOTE: This article was originally published as part of the Spring 2019
Every ten years, households across the United States receive a form from the US Census Bureau asking a variety of questions ranging from “How many people live in your home?” to “What are these peoples’ ages and dates of birth?”. This information gets sent back to the Census Bureau to collect demographic information and delegate the proper number of seats in the US House of Representatives to each state under a process called apportionment. As a result, states are required to create new US House districts, in a process called redistricting, that ensures each member of Congress represents the same number of people. As populations grow and change over time, the census allows bureaucrats to maintain accurate measures of population trends that could shift the balance of power of the individual voter in an area. While this process seems routine and even mundane, the census is one of the most important functions the government carries out each year, and its consequences are large and wide-ranging. Recently, a handful of court cases and actions taken by President Trump have led to significant changes in the process and redistricting at large that could have massive effects on the administration of the census. As the 2020 census quickly approaches, one question has been on the minds of many politicians, government workers, pundits, and academics: How will the recent changes in these vital processes affect the 2020 census and 2022 reapportionment?
When the Founding Fathers met together to found a new nation, they had their priorities in order. Having been ruled by a neglectful monarch for decades, they immediately sought to establish a government that was both representative of and responsible for the people in their new nation. As a result, in Article I of the Constitution, Congress was established, consisting of the House of Representatives and Senate as the upper and lower chambers respectively. Originally, Senators were chosen by state houses, and therefore indirectly elected by the people through their representatives. The number of Senators remained fixed at two per state. On the other hand, from the very start, the House of Representatives was selected by popular vote of the people in individual districts. The number of Representatives was not fixed; rather, they were apportioned evenly by population. In Article I Section 2 of the Constitution, the framers posited the phrase “[An] Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” But many key questions remained. Who gets counted in the census? What questions should be asked? Even more questions were left unresolved about redistricting. What standards should be used to draw state maps? Who gets to draw these maps? What happens if a map is drawn to blatantly dampen or amplify the power of a racial or political group?
In the last several centuries since the ratification of the Constitution, a number of these questions were resolved by courts and presidential administrations. The census slowly developed over time as multiple presidential administrations got to work counting people. Supreme Court cases clarified that ALL people, including voting-aged citizens, children, and non-citizens, were to be counted in the census. Likewise, with the development of new statistical tools and models, random sampling began to be suggested as a replacement for the physical counting mechanisms used by the Census Bureau. The Clinton administration attempted to implement these techniques for the 1998 election, but the House of Representatives led by Newt Gingrich sued the administration. As a result, in the Department of Commerce v. US House of Representatives, the court struck down the use of random sampling to conduct the census, opting instead for the previous survey system. As a result, the census may not be completely accurate, as it counts a variety of people in a manner that may leave many populations, such as the homeless or minority communities, out of the count. In Baker v. Carr, the “one person one vote” standard was established which introduced the idea that each state should divide districts population evenly. For example, if a state had a population of 100,000 and two congressional seats, each district should have 50,000 people in it so each person has the same amount of political agency. Likewise, courts eventually began to take a role in drawing congressional maps over time, stepping in when state legislatures couldn’t agree or failed to pass a map by the deadline. Passage of the 1965 Voting Rights Act (VRA) invigorated the voting rights of numerous minority groups. As part of the bill, the standards were lowered for claims of racial discrimination in map drawing, and the Department of Justice (DOJ) was given oversight of certain areas of the country that were prone to have underrepresented minorities in spite of the heavy concentration of their populations.
The last ten years have brought a vast amount of change in redistricting and the census. In Shelby County v. Holder, the Supreme Court ruled that the formulas used to govern DOJ oversight of certain congressional districts was unconstitutional. This meant that areas that had been known for previous racial discrimination in maps were no longer being supervised by the federal government due to old data used in the original passage of the VRA. Dr. Charles Bullock, a Josiah Meigs Professor at the University of Georgia and an expert on the forefront of redistricting, has emphasized the effect this will have on redistricting after the 2020 census.
“The entire nation, rather than 33 states, will be able to draw their maps and go about putting them into effect…private firms will now be solely responsible for filing suit.” Without these vital checks, minority gerrymandering schemes that have been held back by the government will now have to be sued by private firms in order for them to be stopped. Despite the fact that both parties have identified that the destruction of this important mechanism warrants special attention, no amendment has been passed to the VRA to rectify it. Currently, HR 1, a massive piece of voting rights and campaign finance legislation crafted by the new Democratic House majority, would establish new triggers. However, due to the heavy gridlock and partisanship in D.C., it is doubtful that this proposal will have enough traction to makes its way to a Republican-controlled Senate.
In March of 2018, Secretary of Commerce Wilbur Ross announced that a question about an individual’s citizenship status will be added to the census. This question could have extremely negative effects on participation in the census. Illegal immigrants are already less likely to answer the census out of fear of getting tracked down and then, deported by the government. Adding a citizenship question would likely scare off many important communities who would then be less represented as their existence would not be tallied. Suits have been filed against the Trump administration by many firms, and currently, the constitutionality of the citizenship question is working its way through the federal courts. According to Dr. Bullock, “It’ll likely all come down to Justice Roberts, and it’s not immediately clear how he’ll vote. Most likely, it’ll be a split 5-4 decision.” Whatever happens, it will be a close debate, and the decision will likely cause some public uproar.
Both of these two issues could have catastrophic effects on the proper implementation and use of the census in 2020. Any significant deviations in decisions in census data and reality could have effects on the participation rate of the census and the adequate representation of numerous groups. The American people should be able to count on judges and lawmakers alike to make decisions that will uphold and promote the census as a useful tool to ensure the proper representation we strive for in a democracy. Until then, however, it will be up to vigilant citizens to ensure the census retains its use in our ever-changing political landscape.