Note: In June 2019, the Supreme Court decided not to allow the inclusion of a citizenship question on the 2020 census, following the recommendation of every secretary of commerce and statisticians since 1950, according Justice Sonia Sotomayor.
On March 26, 2018, Commerce Secretary Wilbur Ross directed the Census Bureau to add the question, “Is this person a citizen of the United States?” to the 2020 census.
A hailstorm of advocacy from state and local governments to community-based organizations followed.
Why has this proposed question provoked so many lawsuits and vociferous concerns of an inaccurate count from community leaders?
The answer lies in why we need to conduct a census in the first place.
Article I, Section 2 of the U.S. Constitution requires the federal government to conduct a census every ten years to get an actual count of persons living in the United States. The outcome of the census determines the distribution of 435 seats in the House of Representatives among the 50 states and funding for a variety of programs for the next decade. As an example, in 2016 the federal government distributed $900 billion of funding based on the population count collected from the 2010 census.
Proponents of the citizenship question cited the need to collect this data to enforce federal voting rights law.
Opponents said they feared the inclusion of the question will lead to an inaccurate count because households with undocumented or Hispanic residents may not respond.
One of the many lawsuits was brought by Asian Americans Advancing Justice | AAJC (Advancing Justice | AAJC) in Maryland. In conjunction with 25 other immigrant advocacy organizations, Advancing Justice | AAJC challenged the constitutionality of the citizenship question, claiming that it was based on racial animus (Kravitz v. United States Department of Commerce, and La Unión del Pueblo Entero v. Ross). Advancing Justice | AAJC is a national affiliate of Asian Americans Advancing Justice, a group of five organizations advocating for the civil and human rights of Asian Americans and other underserved communities to promote a fair and equitable society for all. In April 2019, the court ruled in favor of Advancing Justice | AAJC that there will be no citizenship question on the 2020 census.
In early June 2019, The New York Times published new evidence that now-deceased redistricting strategist Thomas B. Hofeller had advocated for the inclusion of a citizenship question to the 2020 census as early as 2015 to favor the Republican Party in future gerrymandering action. Advancing Justice | AAJC’s request to reopen La Unión del Pueblo Entero v. Ross is pending at the U.S. District Court in Maryland because the Hofeller evidence directly addresses the court’s concern that there was no explicit discriminatory purpose behind the citizenship question and the actions of the Department of Commerce.
In addition to filing lawsuits, other lawyers filed “friend of the court” or amicus curiae briefs. Alice Hsu and Geoffrey J. Derrick, attorneys at Akin Gump Strauss Hauer & Feld LLP, are part of a legal team that filed an amicus brief in the Supreme Court’s census case Department of Commerce v. State of New York.
Hsu and Derrick represented a diverse group of amici, including Norman Mineta, Sharon Sakamoto, Eileen Yoshiko Sakamoto Okada, and Joy Sakamoto Barker. During World War II, the U.S. government used census data to aid the effort to round up and incarcerate these individuals, their families, and over 120,000 other persons of Japanese ancestry. It took 46 years before the federal government officially apologized for this wrongful incarceration.
The amici also included The Council on American-Islamic Relations (CAIR) and CAIR-NY, an independent New York affiliate. After the 9/11 attacks, the Census Bureau provided a list of American cities with more than 1,000 Arab American residents and a ZIP Code report of Arab-American population based on country of origin to U.S. Customs and Border Protection.
The last amicus was the Fred T. Korematsu Center for Law and Equity, a Seattle-based nonprofit organization named for the American civil rights hero who was arrested for defying military orders during World War II. His case was used to test the legality of the Japanese American incarceration. In 1944, the U.S. Supreme Court upheld Korematsu’s arrest based on the “circumstances of ‘emergency and peril’.” It was not until 1983 when a writ of coram nobis (a legal petition to reopen a case) led to the court vacating his conviction. With this historical experience, the Korematsu Center has a special interest in government actions that harms people based on race or nationality.
Hsu credits Robert Chang, professor of law and executive director of the Korematsu Center, for suggesting that they weigh in on the pending litigation because they had a special perspective on how census data could be weaponized. CAIR joined the amici because the two groups had also worked together on challenging the Trump travel bans in 2017 (Trump v. Hawaii).
“Working on the amici with such a diverse coalition was one of the most rewarding pro-bono experiences in my career,” said Derrick.
Derrick added, “It was a challenge to be faithful to the individual experiences of the parties while crafting the legal arguments. They are powerful messengers who were directly affected by the census data.”
As the citizenship question faced legal challenges in courts around the nation, Asian Americans Advancing Justice – Asian Law Caucus (Advancing Justice – ALC) has been working with community-based organizations to prepare for the on-the-ground work necessary for a complete population count. As a founding affiliate of Asian Americans Advancing Justice, Advancing Justice – ALC helps set national policies on affirmative action, voting rights, Census and language rights.
Advancing Justice – ALC has been convening immigrant rights organizations to discuss community concerns about census participation and to share relevant legal and policy information. These conversations include census confidentiality protections, what is at stake in the census count, and potential consequences if people respond, or do not respond, to the census questionnaire.
In addition to addressing fears and concerns about census participation, Advancing Justice – ALC has been working with coalitions in California to address concerns of language access and funding for census outreach. Based on experiences from past census, community-based organizations are concerned that the Census Bureau will not hire enough people, or the right people, to address the diverse language needs of communities around the nation.
Additionally, this is the first census that is primarily digital, meaning that most households will be encouraged to complete the census questionnaire online. Advocates believe that robust outreach by community-based organizations will be necessary to address those who do not have access to the Internet, provide adequate language support, and mitigate security concerns about census participation online.
“We want everyone to be counted,” said Julia Marks, voting rights and census staff attorney at Advancing Justice – ALC. Marks acknowledged that it is a big task to get funding to all the right groups but there needs to be a way to ensure that funding is going to a full range of organizations to have a complete count of the population.
For example, over 100 languages are spoken in California. Yet the paper form of the census questionnaire will only be available in English and Spanish. The online questionnaire and the census telephone assistance line will support 12 non-English languages: Spanish, Chinese, Vietnamese, Korean, Russian, Arabic, Tagalog, Polish, French, Haitian Creole, Portuguese, and Japanese. The Census Bureau’s Language Assistance Guides (video and print) will be available in 59 languages, including American Sign Language, braille, and large print. This still leaves dozens of languages unsupported unless a community-based organization can fill the need.
Ironically, the language data comes from the census itself. Consequently, it becomes an equity issue where smaller communities are routinely undercounted because there is insufficient language access to reach and count these groups.
Marks noted that local organizations are open to and engaged in adding census work to their already robust workload but that the state and nonprofit funders should continue to financially support this work to ensure that language access and census outreach will reach all communities.
As we approach the 2020 Census, Marks said community-based organizations should start educating their constituents about the importance of the census regardless of whether the citizenship question is included. For her part, she is telling people, “When you’re counted, that allows us [the nonprofit] to provide services to you.” Census participation is important and matters.
Quyen Tu is an attorney in Orange County, California.
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