2018-12

EMERGENCY RESOLUTION: Rejecting the Proposed Citizenship Question on the 2020 Decennial Census

Sponsored by: Rep. Otoniel “Tony” Navarrete (AZ) and Rep. Rebecca Chavez-Houck (UT)

I. Introduction

WHEREAS, on February 24, 2018, the full membership of the National Hispanic Caucus of State Legislators unanimously approved Resolution 2018-01, entitled Ensuring the Census Works for All Americans; and,

WHEREAS, in that Resolution, we:

• Reiterated the civil rights importance of the Census;
• Called for a full count of all Americans, including precisely identifying Native Americans, African Americans, Native Hawaiian and other Pacific Islanders, Asian Americans, Americans of Middle Eastern and North African (MENA) descent, White Americans, and the members of our Latino communities;
• Called for the adoption of a combined race and ethnicity question and called on Congress to review and reject the decision not to include it by the Office of Management and Budget;
• Affirmed NHCSL’s willingness and desire to legally enforce through the courts any of the above goals, if such an action is deemed legally plausible;
• Called on Congress and the President to fully fund the Census;
• Renewed NHCSL’s call for the inclusion of Puerto Rico, the U.S. Virgin Islands, and the other U.S. territories in all the surveys performed in the fifty States and the District of Columbia by the U.S. Census Bureau; and,
• Called for everyone’s full participation in the 2020 Census, including full cooperation by local, state and national elected officials; and

WHEREAS, in preparing to approve that Resolution, we invited to our Summit in Chicago three Census Bureau officials who, on February 23, 2018, explained the Bureau’s rationale behind the 2020 questionnaire and engaged in a question and answer session with Ms. Rosalind Gold, a nationally recognized Census expert who is the Senior Director of Policy for the NALEO Educational Fund, one of our sister organizations at the National Hispanic Leadership Agenda; and,

II. A citizenship question will provoke an undercount in the 2020 Decennial Census

WHEREAS, in that Resolution, we did not specifically address the citizenship question that Attorney General Jeff Sessions had proposed in late December 2017 for inclusion on the 2020 Decennial Census since the Census Bureau had rejected it because it could depress responsiveness; and,

WHEREAS, the Bureau is not alone in this conclusion, if a citizenship question is included, it is a consensus conclusion of experts that many persons, particularly Hispanics, will not answer out of privacy concerns, fears of law enforcement action, or other negative consequences; and,

WHEREAS, persons that may avoid answering include, but are not limited to, parents of citizens who must answer for their children, persons who are legal permanent residents, persons concerned about data security and privacy in general, and family members of undocumented people, who are afraid of painting a target upon their loved ones and therefore choose to exclude themselves as well; and,

WHEREAS, these fears are not unfounded, in fact, in 2000, the Census Bureau acknowledged and apologized for sharing data on Japanese-Americans living in the West Coast to help the military relocate them to internment camps after the attack on Pearl Harbor in 1941; and,

WHEREAS, precisely because of this undercount potential, the Bureau did not include the topic of citizenship on the list of topics for the Decennial Census that the Administration had to submit to Congress three years before the Census date, by March 31, 2017, as required by 13 USC § 141(f)(1); and,

III. An undercount presents grave national political and economic dangers

WHEREAS, governments at all levels, including everyone from city planners, emergency managers, and school administrators, up to the Federal Reserve, use Census data to make decisions about a broad range of issues from where a road should go to what the unemployment rate is and how the economy is growing; and,

WHEREAS, Census data has always been very trustworthy gold-standard data for the economy; and,

WHEREAS, many businesses use census data to determine growth decisions, such as where to expand. And, economists, marketing experts, and other researchers, use Census data to make business plans and analyses that influence policy or business decisions, including the ability of small business owners to get loans. Undercounted people are still part of the economy and their presence can help justify a business; and,

WHEREAS, an undercount will call into question the reliability of the apportionment and redistricting based on the 2020 Census, unnecessarily provoking further distrust about the validity of our government and democratic institutions; and,

IV. Secretary Ross’ decision to include a citizenship question violates the Census Clause of the Fourteenth Amendment of the Constitution

WHEREAS, in evaluating General Sessions’ request, Commerce Secretary Wilbur L. Ross sought advice on and was made aware of the grave threat of a significant undercount by the Census Bureau itself and by Hispanic community leaders and experts whose warnings are in fact becoming true in the dry-run the Bureau is conducting in Providence, Rhode Island, where the community's growing Latino population is showing reluctance to even participate in the dry-run because of the threat of a citizenship question despite the fact that the Bureau failed to include the question in the test run; and,

WHEREAS, the Fourteenth Amendment to the Constitution requires that the decennial Census count “the whole number of persons in each State,” emphatically not requiring a count of the whole number of citizens, or the whole number of legal residents, or any other metric other than persons; and,

WHEREAS, while the reasons of certain persons for avoiding answering a Census questionnaire with a citizenship question vary, the important thing is that they won’t, and that will frustrate the Constitutional mandate of counting the whole number of persons, provoking an intentionally reckless, if not purposeful, undercount; and,

WHEREAS, it is a basic principle of Constitutional law that the desirability of a government policy or effort cannot outweigh a Constitutional mandate, regardless of how well-intentioned the policy may be; and,

WHEREAS, despite the above, on March 26, 2018, Commerce Secretary Wilbur L. Ross, announced that he would order the inclusion of the citizenship question on the 2020 Decennial Census questionnaire; and,

WHEREAS, Secretary Ross openly stated that he is not concerned about the impact on responsiveness because he found “that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate,” placing that supposed ‘accuracy of citizenship data’ above the explicit Constitutional mandate to count the whole number of persons; and,

V. Secretary Ross’ decision to include a citizenship question violates the Due Process Clause of the Fifth Amendment of the Constitution

WHEREAS, further, as Justice Stephen Breyer explained in his concurrence on Department of Commerce v. United States House of Representatives, 525 US 316 (1999), “Apportionment demands comparable accuracy State by State. A count that reflected evenly distributed error (say, if the population in every State were undercounted by 20%) would produce the same congressional apportionment as a perfectly accurate count; a count that is less comparatively accurate could make matters worse,” 525 US, at 353 (Breyer J., concurring in part and dissenting in part); and,

WHEREAS, this means that a purposefully reckless undercount of Latinos and Latinas based on the inclusion of the citizenship question, because it specifically targets our political power and the Census-based Federal funding our communities receive, also violates the Due Process Clause of the Fifth Amendment, which requires equal protection; and,

VI. Secretary Ross’ decision to include a citizenship question violates the procedural and substantive requirements of both the Census Act and the Administrative Procedure Act

WHEREAS, after Secretary Ross ordered the inclusion of the citizenship question, the Bureau sent the questionnaire to Congress on March 29, 2018; and,

WHEREAS, in submitting the questionnaire to Congress, Secretary Ross failed to submit to Congress a report explaining the “new circumstances” that the Census Act requires he find to add a topic after the 3-year deadline; and,

WHEREAS, the evidence also shows that the Secretary’s decision was also unlawful in terms of the requirements of the Administrative Procedure Act (APA), 5 USC § 701 et seq., which requires that administrative decision not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and,

WHEREAS, first, despite finding that the fears of an undercount had “limited empirical evidence” and questionable materiality, Secretary Ross directed the Census Bureau to “place the citizenship question last on the decennial census form” “to minimize any impact on decennial census response rates,” showing that even he did not believe his own findings that the undercount would not happen, and without stating any reasoning behind the placement; and,

WHEREAS, second, in the Bureau’s questionnaire submission to Congress, the Administration misrepresented the truth about the question, stating that it has been “asked since 1820,” clarifying in a footnote that it was “asked 1820, 1830, 1870, and 1890 to present,” even though the question was in fact asked of all households only until 1950, was not asked in 1960, was only asked the long-form given to just receive, also violates the Due Process Clause of the Fifth Amendment, which requires equal protection; and,

VI. Secretary Ross’ decision to include a citizenship question violates the procedural and substantive requirements of both the Census Act and the Administrative Procedure Act

WHEREAS, after Secretary Ross ordered the inclusion of the citizenship question, the Bureau sent the questionnaire to Congress on March 29, 2018; and,

WHEREAS, in submitting the questionnaire to Congress, Secretary Ross failed to submit to Congress a report explaining the “new circumstances” that the Census Act requires he find to add a topic after the 3-year deadline; and,

WHEREAS, the evidence also shows that the Secretary’s decision was also unlawful in terms of the requirements of the Administrative Procedure Act (APA), 5 USC § 701 et seq., which requires that administrative decision not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and,

WHEREAS, first, despite finding that the fears of an undercount had “limited empirical evidence” and questionable materiality, Secretary Ross directed the Census Bureau to “place the citizenship question last on the decennial census form” “to minimize any impact on decennial census response rates,” showing that even he did not believe his own findings that the undercount would not happen, and without stating any reasoning behind the placement; and,

WHEREAS, second, in the Bureau’s questionnaire submission to Congress, the Administration misrepresented the truth about the question, stating that it has been “asked since 1820,” clarifying in a footnote that it was “asked 1820, 1830, 1870, and 1890 to present,” even though the question was in fact asked of all households only until 1950, was not asked in 1960, was only asked the long-form given to just long form, sent to approximately 1 in 6 households, collected social, housing, and economic information (e.g., educational attainment, disability status, employment status, income, and housing costs) that was used to plan and determine funding for a wide array of federal, state, local, and tribal programs.

WHEREAS, third, in January, the Trump Administration announced that it would not combine the Race and Ethnicity questions in the Census questionnaire using the excuse that more studies were needed; and,

WHEREAS, the proposed combined race and ethnicity question had been tested by the Census in several studies over many years with excellent results. The experts at the Census proposed including it. It was shown to almost eliminate the problem of “Other” being the third largest race in the United States after White and Black. It would benefit all Americans, as an accurate Census count does, but it would particularly benefit Hispanics because that is the category currently excluded from the Race question and included in the Ethnicity question; and,

WHEREAS, conversely, the citizenship question, which will primarily undercount Hispanics, has not been studied or tested at all; and,

WHEREAS, that means that the reasons that Administration officials gave for at least one of the two decisions cannot be truthful. Either the Administration wants exhaustive studies and testing, or it does not. But, it is unacceptably racist that studies and testing are supposedly needed when a new question (the combined race/ethnicity one) will increase the count of Hispanics and yet no studies are needed for another new question (the citizenship one) that will undercount Hispanics; and,

WHEREAS, fourth, Secretary Ross’ stated reason for including the citizenship question, helping to enforce the Voting Rights Act, is belied by yet another decision not to separate “Middle East and North African (MENA)” from the “white” race in the race question; and,

WHEREAS, those of Middle Eastern and North African (MENA) descent, including Arabs and Jews, are subject to great discrimination which triggers the Voting Rights Act in areas where they are numerous. They are citizens whose rights are violated, yet, the Trump Administration refused to count them separately and chose to count them as if they were white; and,

WHEREAS, the truth is that the Voting Rights Act was approved in 1965, fifteen years after the citizenship question was last asked in the universal Decennial Census questionnaire in 1950, so, decennial Census data has never been used to enforce the Voting Rights Act; and,

WHEREAS, in fact, Census Bureau voter turnout data used in the most recent Supreme Court case on the Voting Rights Act, Shelby County Alabama v. Holder, was taken from surveys done by the Bureau on behalf of the Bureau of Labor Statistics some time (even weeks) after the voting ended, not on Decennial Census data or even the American Community Survey. This data was enough for the Court to find portions of the Act unconstitutional, so it is certainly detailed enough to take legal action; and,

WHEREAS, notably, individualized Census data is confidential under Federal law, it is published only in the aggregate, so fine-detail citizenship knowledge at the Census Bureau cannot be shared with the Justice Department to give it any more information than it already has to enforce the Voting Rights Act. In short, decennial Census citizenship question data simply cannot be used to enforce the Act.

VII. Conclusions

THEFREFORE, BE IT RESOLVED, that the National Hispanic Caucus of State Legislators reiterates the conclusions in Resolution 2018-01, entitled Ensuring the Census Works for All Americans, and adds the following conclusions to those contained therein:

1. That the National Hispanic Caucus of State Legislators calls upon the Federal Government to follow the Constitution, ensuring a full and accurate count of all persons; and,

• That the National Hispanic Caucus of State Legislators rejects the proposed citizenship question in the 2020 Decennial Census because it would frustrate that Constitutional purpose by provoking an undercount, particularly of immigrants and Hispanics; and,
• That the National Hispanic Caucus of State Legislators also rejects the proposed citizenship question in the 2020 Decennial Census because it reveals an arbitrary, capricious and racist double standard on the part of Administration officials when it comes to the rigor and testing that a new Decennial Census question should be subjected to, in violation of the Administrative Procedure Act; and,
• That the National Hispanic Caucus of State Legislators also rejects the proposed citizenship question in the 2020 Decennial Census because it violates the reporting requirements of the Census Act; and,
• That the National Hispanic Caucus of State Legislators also rejects the proposed citizenship question in the 2020 Decennial Census because politicizing the Census will hurt the economy, impeding new small businesses from having the data to justify their initial investment or expansion; and increasing costs for all businesses that will be forced to pay for good data because of the provoked unreliability of Census data if the citizenship question is included; and,

BE IT FURTHER RESOLVED, that the National Hispanic Caucus of State Legislators encourages the Census Bureau and, for redistricting and funding purposes, the states and territories, to count deployed service members, students and incarcerated persons at their place of permanent residence and not at the place they happen to be at the time of the census taking; and,

BE IT FINALLY RESOLVED, that a copy of this Resolution be sent to the Congress of the United States, Governors, and State Attorneys General, along with a copy of Resolution 2018-01, Ensuring the Census Works for All Americans.

IN COMPLIANCE WITH THE SPECIAL PROCEDURAL AND VOTING REQUIREMENTS FOR IMMEDIATE NEED OUTLINED IN THE BYLAWS, THE NHCSL EXECUTIVE COMMITTEE UNANIMOUSLY APPROVED THIS RESOLUTION ON BEHALF OF THE ENTIRE CAUCUS AT ITS MEETING IN WASHINGTON, DC ON MAY 26, 2018.

1. https://www.propublica.org/article/trump-justice-department-pushes-for-citizenship-question-on-census-alarming-experts
2. See: Hon. Wilbur Ross, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, at p. 3 (March 26, 2018); https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf
3. Commerce Secretary Ross admitted in his official memorandum that “the Census Bureau and many stakeholders expressed concern that [adding] a citizenship question to the decennial census, would negatively impact the response rate for noncitizens.” See: Hon. Wilbur Ross, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, at p. 3 (March 26, 2018); https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf
4. Memorandum from US Census Bureau Center for Survey Measurement to the Associate Directorate for Research and Methodology regarding Respondent Confidentiality Concerns (Sept. 20, 2017) (Census Bureau Field Supervisors “the main issue they saw was privacy concerns of Latino respondents”) at https://www2.census.gov/cac/nac/meetings/2017-11/Memo-Regarding-Respondent-Confidentiality-Concerns.pdf
5. See https://www.nytimes.com/2018/03/27/us/census-undocumented-immigrants.html
6. US Census Bureau, Subjects Planned for the 2020 Census and American Community Survey,(March 2017), https://www2.census.gov/library/publications/decennial/2020/operations/planned-subjects-2020-acs.pdf
7. Jon Kamp and Janet Adamy, Citizenship Question Rankles in a Trial Run of 2020 Census (Wall Street Journal, April 13, 2018), at https://www.wsj.com/articles/census-citizenship-question-rankles-rhode-island-site-of-only-count-trial-run-1523620801
8. The decennial nature of the count is on Article 1, Section 2.
9. The Constitution does exclude “Indians not taxed” from the Census but those do not exist today and in fact go to show that the Amendment could have excluded others and affirmatively chose not to do so.
10. Hon. Wilbur Ross, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, p. 5, https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf
11. US v. Windsor, 133 S.Ct. 2675, at 2695 (2013) (“The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”)
12. See: US Census Bureau, Census Bureau Submits Planned Questions for 2020 Census to Congress, available at https://www.census.gov/newsroom/press-releases/2018/2020-question.html The deadline was March 31, 2018.
13. USC § 141(f)(3).
14. Hon. Wilbur Ross, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, p. 5, https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf
15. Ibid., at p. 8.
16. Ibid.
17. US Census Bureau, Questions Planned for the 2020 Census and American Community Survey, p. 7 (March 2018), https://www2.census.gov/library/publications/decennial/2020/operations/planned-questions-2020-acs.pdf

Ibid.

1. 19. See https://www.npr.org/2018/03/27/597436512/fact-check-has-citizenship-been-a-standard-census-question
2. US Census Bureau, Subjects Planned for the 2020 Census and American Community Survey, at p. 1 (March 2017), https://www2.census.gov/library/publications/decennial/2020/operations/planned-subjects-2020-acs.pdf
3. US Census Bureau, Questions Planned for the 2020 Census and American Community Survey, p. 1 (March 2018), https://www2.census.gov/library/publications/decennial/2020/operations/planned-questions-2020-acs.pdf
4. See, Hon. Wilbur Ross, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, p. 1, https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf; see also US Census Bureau, Questions Planned for the 2020 Census and American Community Survey, at p. 7; available at https://www.census.gov/newsroom/press-releases/2018/2020-question.html.
5. Except through statistical long-form data from 1970–2000, and later through the American Community Survey.
6. 570 U.S. 529 (2013).
7. 570 U.S. at 535, 548, 573. And see the definition of the Current Population Survey in the US Census Bureau website at https://www.census.gov/topics/public-sector/voting/surveys-programs.html (“The Current Population Survey (CPS) is one of the oldest, largest, and most well-recognized surveys in the United States. It is immensely important, providing information on many of the things that define us as individuals and as a society – our work, our earnings, and our education. Since 1964, the U.S. Census Bureau has fielded the Voting and Registration supplement to the CPS every 2 years in November. While the Census Bureau has collected voting and registration data since 1964, the CPS has gathered citizenship data for congressional voting only since 1978. The CPS is the only source of voting and registration data produced by the U.S. Census Bureau. … The CPS is a monthly survey sponsored by the Bureau of Labor Statistics and conducted by the U.S. Census Bureau.”) (emphasis added).
8. 570 U.S. at 592.