By: Sarah Tindle
Member, American Journal of Trial Advocacy
Since 1790, the United States government has conducted a census every ten years. The census is constitutionally mandated in both the Enumeration Clause and the Apportionment Clause of the United States Constitution. The constitutional purpose of conducting the census is to determine an actual enumeration of the population in order to apportion the number of Members of the House of Representatives from each state. The number of members to the electoral college is also determined by the census. Additionally, billions of dollars of federal funding are distributed according to the responses to the census. Delegates to the Constitutional Convention found it important that the makeup of the House of Representatives in Congress reflect the actual population as opposed to its makeup being influenced by interest groups. Even though the census is constitutionally mandated, the Constitution does not prescribe many guidelines as to how the census is to be administered or what is to be asked on the census. Outside of the requirement that the census must be completed every ten years, the federal government’s only other restriction on the census’s administration is that it be administered “in such manner as [Congress] shall by law direct.” Even though there are only a few constitutional requirements, the upcoming 2020 census has been an extremely polarizing and partisan topic.
Today, the census is administered by the United States Census Bureau (the “Census Bureau”) which is part of the United States Department of Commerce. The Secretary of the United States Department of Commerce is appointed by the President. Because the Constitution only requires that the census be conducted every ten years “in such manner as [Congress] shall by law direct,” it is up to Congress to enact laws that govern the census’s administration. While Congress has enacted some requirements for the decennial census, it has largely left the Secretary of Commerce in charge. The Secretary is required to “take a decennial census of population as of the first day of April of such year, which date shall be known as the ‘decennial census date’, in such form and content as he may determine, including the use of sampling procedures and special surveys.” Additionally, the Secretary of Commerce has the authority to issue rules and regulations as necessary. Three years prior to a given census, the Secretary of Commerce is required to submit to Congress the subjects to be included on the census, and two years prior to the census the Secretary must submit the questions to be included on the census to Congress. After the three-year or two-year reports have been submitted to Congress, the Secretary of Commerce must develop a new report if any circumstances have arisen that make altering the content or questions on the upcoming census necessary.
In 2018, Commerce Secretary Wilbur Ross issued a memorandum announcing that a question asking census respondents’ citizenship status would be contained on the census administered in 2020. According to the memo, Secretary Ross, after consulting with the Department of Justice (DOJ), decided that the citizenship question was necessary to assist with enforcement of the Voting Rights Act (the “VRA”). The Supreme Court noted that without the citizenship question, the Census Bureau would be required to inquire into the citizenship status of 35 million people as opposed to 13.8 million if the question were included. Following that announcement, multiple interest groups, citizens, states, and other localities commenced legal challenges to the addition of the citizenship question. Most of these cases questioned Secretary Ross’s authority under the Administrative Procedure Act (i.e., whether he acted arbitrarily and capriciously in deciding to include the question), whether the given reason of enforcing the VRA was pretextual, and whether the inclusion of the citizenship question would undermine the Enumeration Clause by discouraging people from answering the census.
In order to apportion members of the House of Representatives, the Secretary of Commerce must submit the tabulation of each state’s population to the President within nine months of the census date. States with low amounts of undocumented persons are concerned about possibly of losing a congressional seat following the census if the question is included and the total population is used to apportion seats. For example, Alabama has seven delegates in the House of Representatives, but many predict that Alabama will only have six after the 2020 census is completed. As a result some states, including Alabama, have launched campaigns in order to encourage participation in completing the census questionnaire. Each state’s electoral college votes are determined by its representation in Congress. The census, therefore, may also effect the amount of members each state sends to the electoral college.
In 2018, the State of Alabama and Congressman Mo Brooks challenged the potential inclusion of noncitizens in the apportionment base. Their argument centers on how the population would be counted if the citizenship question were included on the census, alleging that that it would be unconstitutional for the Census Bureau to use the total population count to apportion congressional seats and distribute federal funding. It was recently decided that Alabama has standing to bring its claims.
Recently, the United States Supreme Court issued an opinion essentially putting a hold on the inclusion of the citizenship question. That case, Department of Commerce v. New York, involved consolidated cases posing challenges to Secretary Ross’s conduct under the Administrative Procedure Act, violations of the Enumeration Clause, and Equal Protection claims. The Supreme Court decided that Secretary Ross’s decision to include the question was subject to judicial review under the Administrative Procedure Act because the census’s administration is not completely discretionary. The Court agreed with the district court that the Secretary’s reason for including the question did not match the evidence presented and that the issue should be remanded to the agency to provide an explanation. The reason Secretary Ross gave for including the question (the enforcement of the VRA) was called both “contrived” and “a distraction.” According to the Court, Secretary Ross’s decision to include the question was made well in advance of the DOJ requesting the information for enforcing the VRA. However, it was held that the Enumeration Clause does not prevent the Secretary from including the citizenship question:
[i]n light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. We need not, and do not, decide the constitutionality of any other question that Congress or the Secretary might decide to include in the census.
Proponents of the inclusion of the question have argued that the citizenship question is simply being reinstated on the 2020 census, and that it is not historically out of the norm to include it. From 1820-2000 all censuses, with the exception of one, have questioned respondents on their place of birth or citizenship status. Supreme Court Justices Gorsuch and Thomas have previously noted that “[m]ost censuses in our history have asked about citizenship, and Commerce Secretary Wilbur Ross recently decided to reinstate a citizenship question in the 2020 census, citing a statement from the Department of Justice indicating that citizenship data would help it enforce the Voting Rights Act of 1965.” Many claim that this reinstatement argument is not entirely true because not all census questionnaires inquired into the respondent’s citizenship. Beginning in 1940, the Census Bureau began collecting demographic information from statistical sampling. To collect this information, two different census questionnaires were used: a short form and a long form. Not all people would receive the long form questionnaire, which asked more detailed questions. For example, in the 1940s and 1950s, only 1 in 20 families were asked to complete the long form questionnaire. Using statistical sampling in order to determine apportionment has been determined to be unconstitutional. In 2010, the census asked everyone the same questions—there was no long form or short form. Instead, the census asked about the respondent’s Hispanic origin and included more detailed citizenship questions on the American Community Survey which was sent to roughly 2.6% of the population.
One of the main concerns about including the citizenship question is that it may result in a decreased amount of census responses in 2020. The Census Bureau contends, however, that its method of imputation will diminish the effects of the potential decreased response rate. Imputation is the method used to make adjustments or fill in gaps to the Census Bureau’s headcount as determined by the actual responses to the census. Imputation methods are considered “supplements” to the traditional census headcount. Portions of the population, including racial and ethnic minorities, are known to be systemically undercounted in censuses which is why imputation is a big deal. The Supreme Court has previously noted that one of the errors of the decennial census is the accidental counting of persons who are not citizens of the United States. Inclusion of the citizenship question is alleged to negatively impact the response rate of these racial and ethnic minorities. However, because imputation is largely used to make adjustments for this reason, maybe including the citizenship question is really not as big of a deal as some believe. On the other hand, however, if these groups already are systematically undercounted, then its inclusion may only further any already existing harm.
Many believe that there is no requirement to answer all questions on the census or to even respond to the census at all, and, therefore, even if the census does ask questions related to a person’s citizenship status that they would not have to respond. However, there are penalties associated with refusing to respond and for failing to respond. If a person fails to respond to a census, a fine of up to $100 can be imposed for refusing to answer or willfully neglecting to answer to the best of one’s knowledge. Even steeper, a fine of up to $500 can be imposed for willfully giving false answers on a census. The only exception for these penalties is for answers to questions relating to a person’s religious affiliation.
 U.S. Const. art. I, § 2, cl. 3. This provision states as follows:
Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual 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.
U.S. Const. art. I, § 2, cl. 3; U.S. Const. amend. XIV, § 2 (“Representatives 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.
 U.S. Const. art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”).
 La Unión del Pueblo Entero v. Ross, 353 F. Supp. 3d 381, 386 (D. Md. 2018) (“The population count is used to apportion representation as well as to allocate more than $675 billion in federal funding for over 130 different federal programs and to collect demographic data.”).
 Franklin v. Massachusetts, 505 U.S. 788, 791 (1992) (“The delegates to the Constitutional Convention included the periodic census requirement in order to ensure that entrenched interests in Congress did not stall or thwart needed reapportionment.”).
 13 U.S.C.A. § 2 (West 2019).
 U.S. Const. art. I, § 2, cl. 3.
 13 U.S.C.A. § 141(a) (West 2019).
 13 U.S.C.A. § 4 (West 2019) (“The Secretary shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary to carry out such functions and duties, and may delegate the performance of such functions and duties and the authority to issue such rules and regulations to such officers and employees of the Department of Commerce as he may designate.”).
 13 U.S.C.A. § 141 (f)(1)-(2) (West 2019).
 13 U.S.C.A. § 141 (f)(3) (West 2019).
 Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2562 (2019).
 California v. Ross, 362 F. Supp. 3d 749, 757 (N.D. Cal. 2018).
 New York, 139 S. Ct. at 2570.
 See, e.g., New York v. United States Dep’t of Commerce, 351 F. Supp. 3d 502 (S.D. N.Y 2019), cert. granted 139 S. Ct. 953 (2019); Kravitz v. United States Dep’t of Commerce, 336 F. Supp. 3d 681 (D. Md. 2019); California v. Ross, 358 F. Supp. 3d 965 (N.D. Cal. 2019); La Unión del Pueblo Entero v. Ross, 353 F. Supp. 3d 381 (D. Md. 2018).
 13 U.S.C.A. § 141(b) (West 2019).
 See, e.g., Press Release: Governor Ivey Kicks Off Year-Long Alabama Counts 2020 Initiative, Office of the Governor (Apr. 4, 2019), https://governor.alabama.gov/press-releases/governor-ivey-kicks-off-year-long-alabama-counts-2020-census-initiative/.
 U.S. Const. art. II, § 1, cl. 2.
 Alabama v. United States Dep’t of Commerce, 2:18-cv-00772-RDP, 2019 WL 2372234 (N.D. Ala. June 5, 2019).
 Id. at *10.
 New York, 139 S. Ct. at 2563.
 Id. at 2568-69.
 Id. at 2576.
 Id. at 2567.
 New York, 139 S. Ct. at 2562.
 In re Dep’t of Commerce, 139 S. Ct. 16, 17 (2018).
 Dep’t of Commerce v. United States House of Representatives, 525 U.S. 316, 352 (1999) (Breyer, J., concurring in part and dissenting in part).
 Id. at 320-21.
 New York, 139 S. Ct. at 2562.
 California v. Ross, 358 F. Supp. 3d 965, 985 (N.D. Cal. 2019).
 United States House of Representatives, 525 U.S. at 353 (Breyer, J., concurring in part and dissenting in part).
 Wisconsin v. City of New York, 517 U.S. 1, 6 (1996).
 13 U.S.C.A. § 221 (a)-(b) (West 2019).
 13 U.S.C.A. § 221 (a) (West 2019). The statute, in relevant part, reads as follows:
Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.