Counting Every Person: Safeguarding The 2020 Census Against The Trump Administration’s Unconstitutional Attacks
View a PDF of this statement here.
STATEMENT FOR THE RECORD OF
VANITA GUPTA, PRESIDENT & CEO
THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS
“COUNTING EVERY PERSON: SAFEGUARDING THE 2020 CENSUS AGAINST THE TRUMP ADMINISTRATION’S UNCONSTITUTIONAL ATTACKS”
HOUSE COMMITTEE ON OVERSIGHT AND REFORM
July 29, 2020
Chairwoman Maloney, Ranking Member Comer, and Members of the Committee: I am Vanita Gupta, president & CEO of The Leadership Conference on Civil and Human Rights. Thank you for the opportunity to submit this statement about the importance of counting every person and safeguarding the 2020 Census.
The Leadership Conference is a coalition charged by its diverse membership of more than 220 national organizations to promote and protect the civil and human rights of all persons in the United States. Founded in 1950 by A. Philip Randolph, Arnold Aronson, and Roy Wilkins, The Leadership Conference works in support of policies that further the goal of equality under law through legislative advocacy and public education.
The Leadership Conference provides a powerful unified voice for the many constituencies of the coalition: persons of color, women, children, individuals with disabilities, LGBTQ individuals, older Americans, labor unions, major religious groups, civil libertarians, and human rights organizations. Our coordinating role among such a diverse group of organizations allows for the sharing of different perspectives and the development of broad strategies to address the impact policy decisions have on a broad range of constituencies. This work uniquely positions The Leadership Conference to speak to the importance of a fair and accurate census that collects useful, objective data about our nation’s people, housing, economy, and communities.
As I noted in testimony before the Committee in January of this year, our coalition views the successful implementation of a fair and accurate census to be among the most important civil rights issues of our day. Along with the Leadership Conference Census Task Force co-chairs, NALEO Educational Fund and Asian Americans Advancing Justice | AAJC, we have a long history of directly supporting previous censuses. For the 2010 Census, we leveraged our experience to conduct the most comprehensive stakeholder effort to promote participation in historically undercounted and low-response communities, and we have continued to build upon this work to ensure a complete count of all people living in the U.S. in the 2020 Census. The Leadership Conference Education Fund, the education and research arm of The Leadership Conference, established the Census Counts Campaign to engage national organizations and state and community partners to implement proven strategies for reaching populations at risk of being missed, so that their communities receive the political representation and resources they deserve.
Unfortunately, we are concerned that the Trump administration’s recent actions are intended to undermine these activities and the many other efforts stakeholders and community groups are taking to help the Census Bureau conduct a full and accurate count. The guarantee of equal representation under the Constitution’s 14th Amendment can only be achieved by the completion of a full, fair, and accurate census. That clause amended Article I, section 2, which gives Congress responsibility for overseeing a census every ten years. Therefore, while Congress has delegated authority to the Secretary of Commerce to conduct the census, it must exercise its constitutional duty by closely monitoring census methodology and operations, so that the 14th Amendment’s guarantee becomes a reality. For that reason, we thank the Committee for holding this hearing to examine the constitutionality and true purpose of the President’s July 21, 2020 Memorandum related to the numbers used for congressional apportionment, the impact it will have on the accuracy and integrity of the count, and its potential to exacerbate existing challenges the Census Bureau faces in its 2020 operations.
The Importance of the Census
The U.S. Constitution requires a census every 10 years for the purpose of apportioning seats in the U.S. House of Representatives (Article I, sec. 2, clause 3) among the states. The apportionment base is composed of the population of each state counted in the census. Both Republican and Democratic administrations, through the U.S. Department of Justice (DOJ), have concluded unequivocally that the Constitution requires a count of all persons living in the United States on Census Day, regardless of citizenship or legal status. In fact, in adopting the 14th Amendment, Congress rejected proposals to allocate seats in the House of Representatives based on voter-eligible population, rather than total population.[1]
The census also provides information that is the cornerstone of knowledge about our population and communities. It is the basis for virtually all demographic and socio-economic data used by businesses, policy makers, research institutions, and nonprofit organizations. Congress uses census data to identify community needs and to distribute federal program dollars to states and localities based on population numbers or other community characteristics that the decennial census and related American Community Survey measure. An accurate census will: (1) ensure that every community, as well as people and households in need, receive the federal resources to which they are entitled under all census-guided programs; and (2) ensure that lawmakers can make informed decisions about how to allocate federal dollars fairly, prudently, and effectively.
For all of these reasons, getting the census right is important to everyone. The primary and overarching goal of the census is a fair and accurate enumeration of all people residing in the United States on Census Day (April 1, 2020). The goal of a census that is equally successful in all communities is non-negotiable.
A Fair and Accurate Census Is at Risk
Unfortunately, the Census Bureau’s ability to conduct a high-quality, accurate census is now at significant risk. Even before the coronavirus pandemic, the 2020 Census already faced an unprecedented set of challenges. Not only has the U.S. population grown, it has become more diverse – geographically, culturally, and linguistically. As a result, more residents fall within historically hard-to-count categories that will require additional efforts from the Bureau in order to be fully counted. Additionally, the Census Bureau is facing new and increased threats as it encourages widespread internet response for the first time. It must prevent potential cyber-attacks, counter disinformation campaigns, and mitigate the effects of the digital divide. The Bureau must also address the challenges posed by population displacement due to extreme natural disasters in recent years, such as floods, tornadoes, hurricanes, and wildfires. Finally, although the Supreme Court halted the Trump administration’s attempts to add an untested citizenship question to the 2020 Census questionnaire at the eleventh hour,[2] the administration continues to pursue policies that will stoke fear among immigrant households and keep many immigrants, regardless of their legal status, from self-responding or cooperating with enumerators.
Coronavirus Disruptions
While the Bureau was repeatedly forced to cancel, streamline, and delay vital research and planning activities throughout the decade as a result of significant budget shortfalls, perhaps nothing has strained Bureau operations more than the ongoing pandemic. The public health crisis arising from the spread of COVID-19 has already disrupted every 2020 operation and threatens to impede operations further if virus surges continue.
Had everything gone according to plan, the Bureau would be wrapping up the data collection portion of both major household counting operations — Self-Response and Nonresponse Follow-up (NRFU) — this week, on July 31.[3] Instead, the deadline for households to self-respond to the census was extended by three months, to October 31, so that the Bureau could continue its field operations and reduce the need for more costly, multiple in-person visits to nonresponding households.[4] It is imperative that the Bureau, national stakeholders, local officials, and community groups work diligently over the next several months to highlight the importance of the census and encourage participation. (As discussed elsewhere in this statement, following this hearing, this deadline was moved to September 30, thereby cutting the census short.)
All other field operations have been delayed or modified due to the pandemic, as well. Hand-delivery of census packets to households in many rural areas and on most American Indian reservations was suspended for more than two months, leaving these communities largely in the dark about how and when they would be counted.[5] The start of the Update Enumerate operation was delayed from March to June,[6] while enumeration of Remote Alaska, done entirely in-person, was paused and will now extend through August.[7] The Early Nonresponse Follow-up operation, designed to reach college students living off-campus before the end of the semester, was canceled.[8]
The restrictions put in place by states during the coronavirus pandemic have also made it harder for the Bureau to ensure a complete enumeration of non-household populations. Operations to count people experiencing homelessness who live in sheltered and outdoor locations (and do not otherwise live in a household), as well as people living in transitory locations such as RV parks, hotels, and marinas, were pushed back from April to September,[9] and adjustments were made to the enumeration of group facilities such as college dorms and nursing homes.[10] The Bureau also is taking additional steps to ensure that college students – many of whom left their academic year residences to return home when classes transitioned from in-person to online – are counted at the correct location.[11] Failure to get this part of the enumeration right could leave “college towns” and cities that are home to higher education institutions with significant undercounts and an inability to secure federal resources based on population figures for the next decade.
Similarly, stay-at-home orders and limitations on in-person events have complicated efforts by the Bureau and community partners to encourage self-response through trusted messengers, as well as help individuals seeking assistance in filling out their forms. Partnership Specialists could only work remotely until last month,[12] and launch of the congressionally-directed Mobile Questionnaire Assistance Center (M-QAC) operation, which aims to increase participation in low-response areas by helping people complete their census forms on tablets at highly trafficked locations, was delayed from March 30 to July 13.[13] Now, that operation has been curtailed due to ongoing health concerns and coronavirus surges in various communities. The Census Questionnaire Assistance (CQA) operation also did not work as intended during the early months of the pandemic, which coincided with the peak self-response period. As a result of reduced in-person staffing at call centers due to social distancing protocols, individuals who wanted to provide their census responses by phone faced long wait times and a lack of ready assistance in some of the 12 non-English languages offered.[14] The call-back option was unavailable for several weeks once COVID-19 restrictions hit their peak, as well.[15]
In a year when government distrust is already high and self-response rates were already projected to be lower than in past decades, these collective operational delays have left many areas with lagging response rates that will require significant on-the-ground follow-up and continued outreach through October 31, as the Census Bureau’s expert, career staff had planned, to ensure a complete count.
Low Self Response Rates Across the Country
While all of the modifications to census activities were necessary, they left the Bureau with significant challenges for completing a high-quality census, not the least of which is lagging response rates. As of July 23, the national response rate was 62.3 percent, about four percentage points below the final 2010 response rate of 66.5 percent and below the 2010 response rate of 63.5 percent at the start of the door-knocking operation.[16] While that may not sound like cause for alarm given the extended deadline, it is important to remember that we do not know what path the virus will take in the coming months. Should the pandemic continue to worsen in various parts of the country, such that nonresponse follow-up activities are further delayed or restricted, the Bureau may have difficulty enumerating the large universe of households that will require one or more in-person visits. The lagging response rates are a worrisome indicator of the Bureau’s ability to conduct an accurate count everywhere.
Low response rates should raise concerns across the country. Most states have not yet met their 2010 response rates or the national average. For example, South Carolina’s response rate was just 57.1 percent as of July 30, and similarly low numbers can be found in states as geographically and demographically variant as Vermont (56 percent), West Virginia (54 percent), and Arizona (59.5 percent).[17] Communities with response rates below their 2010 level will need a greater NRFU effort than in the prior census. Even in states that have matched or outpaced their response rates from the 2010 Census, higher statewide rates can obscure far lower rates in some of their cities and counties. For example, while Kentucky as a whole has outperformed its 2010 Census self-response rate, about a dozen counties in the eastern half of the state still have response rates under 50 percent.[18] Lower-than-expected response rates will require a larger NRFU workload than the Census Bureau projected, which could, in turn, require more staff and more time. Early indications from the “soft launch” of the door-knocking operation suggest that even in communities where COVID-19 numbers are manageable and stable, retention of field staff is a problem due to concerns on the part of new hires about the safety of doing work that essentially involves direct contact with strangers.
In the coming months, the Bureau must focus its efforts even more on collecting information in-person from households that did not respond on their own, including in states with coronavirus surges. As of last week, two of the states with the largest uptick in coronavirus cases – Florida and Texas – had self-response rates of just 59.8 percent and 57.7 percent, respectively.[19] If these or other places become hotspots later in the summer and early fall, census workers may be unable to conduct the necessary in-person visits that are essential to reaching a disproportionate number of historically undercounted population groups and communities that are part of the fabric of every state.
Recent Actions Will Exacerbate Existing Threats to an Accurate Count
On July 21, the President issued a Memorandum directing the Secretary of Commerce to “take all appropriate action” to provide data that would allow the President to exclude from the apportionment base “aliens who are not in a lawful immigration status under the Immigration and Nationality Act.”[20] The President is attempting to claim unilateral authority to determine who does and who does not count in the census. But the Constitution has already decided that issue for him: All people count.
President Trump’s proposal violates the plain text of the Constitution. Likewise, it ignores long-settled interpretations of that text by the courts, Congress, and the executive branch. The Census Clause—Article I, Section 2, as amended by the 14th Amendment—requires that congressional “[r]epresentatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. art. I, § 2, cl. 3; id. amend. XIV, § 2 (emphasis added). The clause means precisely what it says: All people are “persons,” and so all people are included in the apportionment count. There is no hidden meaning.
This interpretation of the Census Clause is further supported by a comprehensive reading of the Constitution. While the Framers chose to limit the provision of certain rights and privileges, like the ability to hold federal public office, to citizens only, they included no such restriction on the individuals counted by the census. The Supreme Court has repeatedly held that word choice matters, ruling in Yick Wo v. Hopkins that the 14th Amendment’s protections are not limited to citizens, and in Plyler v. Doe that undocumented immigrants qualify as “persons” for the purposes of the 14th and 15th Amendments.[21] Moreover, the Supreme Court has noted that “the Framers chose to use population … as the basis for representation” (Utah v. Evans) [22] and, most recently, that the 14h Amendment requires an apportionment base consisting of all people (Evenwel v. Abbott).[23] Indeed, the Justices have stated that “representatives serve all residents, not just those eligible or registered to vote.”[24] (Id.)
The President’s recent memo also runs counter to a longstanding Executive Branch conclusion that “persons” includes all noncitizens, documented or not, for the purposes of congressional apportionment. During the Reagan administration, the Justice Department’s Office of Legal Counsel noted that it had advised previous Congresses that undocumented immigrants must be included in the apportionment base and that it “continued to believe that [this position] is sound.”[25] The Justice Department confirmed this position in the administration of George H.W. Bush, when it stated in a letter to Congress that it “found no basis for reversing this position.”[26]
The Census Bureau spent most of this decade preparing to carry out the congressional mandate to count all persons, through painstaking research on methodology and operations, technology development, and question testing. In 2018, Commerce Secretary Ross upended this meticulous process by directing the addition of a new citizenship question to the 2020 Census, without testing or documentation to support the need for the question.[27] Last year, the Supreme Court ruled that Secretary Ross violated the Administrative Procedure Act, essentially ending the administration’s quest to add the question to the 2020 Census form.[28] Fortunately, the new Memorandum does not change the fact that everyone counts in the census, nor does it change current Bureau operations. It is therefore imperative that households continue responding to the census, whether on their own or by speaking with enumerators, and that they have confidence that they will be counted and that their data will remain confidential, regardless of their immigration status. In other words, we must stay the course and rise above any efforts to create fear in immigrant communities, in order to reach the goal of a fair and accurate census, which we all share.
But this is exactly what President Trump and his administration appear to be worried about: that all people living in our communities will be counted in the census. Because of that, their new plans go a step further. In April, the administration asked Congress to extend the statutory deadlines for the Secretary to report apportionment data to the President and for the Census Bureau to transmit redistricting data to the states, because of the significant operational disruptions and delays caused by the pandemic.[29] The House of Representatives approved this extension, along with an additional $400 million to address unanticipated census costs resulting from the pandemic, in the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, passed on May 15, 2020.[30]
Now, we have learned that the White House has abandoned its request and will not support the legislative provision extending the deadlines. When Senate Republicans unveiled their COVID relief package, it did not include an extension of the reporting deadlines, but it did include $448 million for the 2020 Census. It is unclear how Republicans determined this amount. Whatever the rationale for the funding level, the Senate provision is a red herring because the White House’s abandonment of its request to extend the reporting deadlines will force the Census Bureau to rush not only the remaining counting operations, but also critical data review, processing, and tabulation activities. The administration (through OMB) requested additional funding in the Senate COVID bill, not to improve the accuracy of the count, but instead to do the exact opposite: further disrupt already rescheduled 2020 Census activities by cutting short and, therefore, rushing the door-to-door enumeration that will now end a month earlier than planned,[31] in order to meet the current statutory apportionment reporting deadline in case the President does not win reelection—all in furtherance of the administration’s quest to compromise the integrity of the constitutional count for purely political gain.
Such a step would not only lead to more severe undercounts among hard-to-count communities, but also significant confusion among local officials, partner organizations, and the public. Taxpayers have already spent almost $16 billion on the 2020 Census.[32] Now is not the time to throw away that investment by rushing key census operations and forcing the Census Bureau to produce an unfinished census of unacceptable quality. We cannot afford to get this wrong, and we must give all communities and census workers the time needed to produce a complete count. The resilience of our democracy depends on it.
To ensure a complete census, Congress should adopt the administration’s original request to extend statutory reporting deadlines for apportionment and redistricting and should allocate $400 million in additional funding to address continued 2020 Census challenges brought about by the coronavirus pandemic. Census operations must be able to continue in a manner that facilitates a fair and accurate count.
Decisions Should be Driven by Science, Not Politics
Any plan to complete the 2020 Census amid continued COVID-19 surges and lagging household response rates should be driven by experts and scientists at the Census Bureau, not the White House or Office of Management and Budget staff. It was expert, career Census Bureau staff who advised that they needed the additional time to complete the census thoroughly in all communities, and process and tabulate the data in accordance with the Bureau’s quality standards.
The administration’s abandonment of its request for an extension of the statutory deadlines, which is forcing the Census Bureau to cut the census short, are the latest examples of interference in the implementation of the census, without consulting Bureau career staff or else dismissing concerns that stood in the way of achieving political objectives. Much like how the administration tried to add a citizenship question to the 2020 Census over the warnings of the Bureau’s chief scientist that doing so would depress the count, the White House is trying to push through its next politicized request without input from those in charge of ensuring an accurate count. While it is not fully clear who in the administration was directly responsible for the decision to drop the request to modify the reporting deadlines, concerns over the continued politicization of the nation’s largest, most well-known statistical agency are compounded by the installation of two new political appointees in top positions, despite their lack of requisite experience to lead census programs or well-defined responsibilities.
The census is a cornerstone of our democracy. Protecting the apolitical implementation of this constitutionally required national activity is of utmost importance. We must reject the administration’s attempts to skew the electoral map in their political party’s favor, not by virtue of the party platform, but by skewing census results through politicization of the census. We urge every member of this esteemed authorizing committee, and every member of Congress, to reject this cynical effort to undermine the quality and accuracy of the nation’s largest peacetime activity.
Conclusion
Now is not the time to throw away our significant investment in the census by rushing key census operations and forcing the Census Bureau to produce an unfinished census of unacceptable quality. Every state and every community will be harmed by the effort to rush the remaining operations, inevitably resulting in an unfinished count that all Americans must live with for the next ten years. A poorly executed census could hurt a diverse range of communities in every corner of the country, leaving them underrepresented in Congress and depriving them of critical federal resources. Congress must give all communities and census workers the time and resources they need to produce a complete, accurate count.
[1] See, e.g. Evenwel v. Abbott, 136 S. Ct. 1120, 1127-28 (2016), noting that “Constitutional history shows that, at the time of the founding, the Framers endorsed allocating House seats to States based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Retaining the total-population rule, Congress rejected proposals to allocate House seats to States on the basis of voter population. See U. S. Const., Amdt. 14, §2. The Framers recognized that use of a total-population baseline served the principle of representational equality.”; See also, Crocker, R. (Oct. 30, 2015). Apportioning Seats in the U.S. House of Representatives Using the 2013 Estimated Citizen Population. Congressional Research Service. https://fas.org/sgp/crs/misc/R41636.pdf
[2] Department of Commerce v. New York, 139 S. Ct. 2551 (2019).
[3] U.S. Census Bureau. 2020 Census Operational Adjustments Due to COVID-19. https://2020census.gov/en/news-events/operational-adjustments-covid-19.html
[4] U.S. Census Bureau. (Apr. 13, 2020). U.S. Department of Commerce Secretary Wilbur Ross and U.S. Census Bureau Director Steven Dillingham Statement on 2020 Census Operational Adjustments Due to COVID-19. https://www.census.gov/newsroom/press-releases/2020/statement-covid-19-2020.html.
[5] U.S. Census Bureau. (May 15, 2020). Census Bureau Statement on 2020 Operations on Tribal Lands and Reservations. https://www.census.gov/newsroom/press-releases/2020/operations-aian.html
[6] U.S. Census Bureau. 2020 Census Operational Adjustments Due to COVID-19. https://2020census.gov/en/news-events/operational-adjustments-covid-19.html
[7] U.S. Census Bureau. (June 12, 2020). Updates to 2020 Census Operations. https://www.census.gov/newsroom/press-releases/2020/update-census-operations.html
[8] U.S. Census Bureau. 2020 Census Operational Adjustments Due to COVID-19. https://2020census.gov/en/news-events/operational-adjustments-covid-19.html
[9] U.S. Census Bureau. (June 12, 2020). 2020 Census Workers to Count Population Experiencing Homelessness in September. https://www.census.gov/newsroom/press-releases/2020/homelessness.html
[10] U.S. Census Bureau. (July 1, 2020). 2020 Census Begins In-Person Count of People Living in Group Quarters. https://www.census.gov/newsroom/press-releases/2020/2020-group-quarters.html
[11] U.S. Census Bureau. (Mar. 15, 2020). Census Bureau Statement on Modifying 2020 Census Operations to Make Sure College Students are Counted. https://2020census.gov/en/news-events/press-releases/modifying-2020-operations.html
[12] U.S. Census Bureau. (June 12, 2020). Updates to 2020 Census Operations. https://www.census.gov/newsroom/press-releases/2020/update-census-operations.html
[13] U.S. Census Bureau. 2020 Census Operational Adjustments Due to COVID-19. https://2020census.gov/en/news-events/operational-adjustments-covid-19.html
[14] U.S. Census Bureau. (Apr. 10, 2020). U.S. Census Bureau Adapts Operations to Increase Call Center Capacity for 2020 Census. https://www.census.gov/newsroom/press-releases/2020/increase-call-center-capacity.html
[15] Ibid.
[16] HTC 2020. (accessed July 30, 2020). Mapping “Self Response” for a Fair and Accurate 2020 Census. https://www.censushardtocountmaps2020.us/?latlng=40.00000%2C-98.09000&z=4&promotedfeaturetype=states&baselayerstate=3&rtrYear=sR2020latest&infotab=info-rtrselfresponse&filterQuery=false
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census. (July 21, 2020). https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/
[21] 118 U.S. 356, 369 (1886); 457 U.S. 202, 210 (1982).
[22] 536 U.S. 452 (2002).
[23] 136 S. Ct. 1120, 1127-28 (2016).
[24] Ibid.
[25] Letter from Thomas M. Boyd, Acting Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, to James C. Miller III, Director, U.S. Office of Management & Budget. (Apr. 1988).
[26] Letter from Carol T. Crawford, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, to Senator Jeff Bingaman, Chairman, Subcommittee on Government Information & Regulation, Committee on Homeland Security and Governmental Affairs. (Sept. 22, 1989).
[27] Memorandum from Secretary Wilbur Ross, U.S. Department of Commerce, to Karen Dunn Kelley, Under Secretary for Economic Affairs. (Mar. 26, 2018). https://www.documentcloud.org/documents/4426785-commerce2018-03-26-2.html
[28] Department of Commerce v. New York, 139 S. Ct. 2551 (2019).
[29] U.S. Census Bureau. (Apr. 13, 2020). U.S. Department of Commerce Secretary Wilbur Ross and U.S. Census Bureau Director Steven Dillingham Statement on 2020 Census Operational Adjustments Due to COVID-19. https://2020census.gov/en/news-events/press-releases/statement-covid-19-2020.html?linkId=100000011751624
[30] H.R. 6800. 116th Cong. (2020).
[31] U.S. Census Bureau. (Aug. 3, 2020). Statement from U.S. Census Bureau Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count. https://www.census.gov/newsroom/press-releases/2020/delivering-complete-accurate-count.html
[32] U.S. Census Bureau. (June 10, 2019). Life-Cycle Cost Estimate (LCCE). https://www2.census.gov/programs-surveys/decennial/2020/program-management/planning-docs/life-cycle-cost-estimate_v2.pdf