The Census, COVID-19, And Democracy
After the Supreme Court dismissed the Trump administration’s attempt to add the citizenship question to the decennial census on procedural grounds, primarily because the administration brazenly lied to the Court in its submissions, concerns about the census seemed to fade away. Yet the COVID-19 pandemic was already creating problems and distortions with the census, well beyond the usual problems in counting traditionally underprivileged and underserved communities which results in anywhere between one and four million people not being left out. In fact, the largest distortions this year may not be in those underserved communities but instead in prison and college towns as well as, ironically, some of the richest areas in the country.
In mid-March, the Census Bureau suspended household visits because of the pandemic. In April, the Bureau announced that it was moving its deadline for completing the census forms to October 31st instead of the scheduled August 15th date. In addition, the Bureau said it intended to request Congress to provide a four month extension to its normal end-of-year requirements for reporting redistricting data, pushing those deadlines well into late spring and early summer of 2021. Such a delay would then impact states which have statutory requirements for completing redistricting in certain time frames. In particular, Virginia and New Jersey would probably not be able to complete redistricting in time for their odd-year elections in November, 2021.
A few days ago, census workers restarted household visits in a handful of selected states and, at present, the plan is to restart those visits in most of the other states on August 11, despite the current explosion of coronavirus infections. Those visits are designed to contact the nearly one-third of households who have not responded to the questionnaire either on-line or by mail, but their efficacy is uncertain considering all the safety concerns related to the pandemic.
The pandemic has probably already created distortions in whatever the results of the census will provide. According to one demographer, “People are supposed to report where they were living on April 1. Yet many left their usual residences to move in with parents, adult children, other relatives or friends; some fled to second homes; nearly 20 million college students vacated dorms or apartments; tens of thousands of inmates were granted early release; and nursing homes experienced high death rates from COVID-19, leading to no responses from deceased people who should have been counted on April 1.” People who have moved out of their homes to other locations and set up a forwarding address would still not receive their census forms as the Post Office will not forward census forms sent to a household.
For example, in New York City, a recent report showed that only 46% of upper East Side households had returned their forms compared with a 71% self-response rate in 2010. Midtown and downtown districts as well as parts of Queens were even worse, with self-response rates only in the high 30s. A new WNYC report said that the self-response rates for congressional districts in northern Manhattan are all under 60% by varying margins. One civic leader fretted, “When we started to look at the numbers come in, at the very beginning of the pandemic, I think all of us working on census outreach were very shocked and stunned”, noting that the richest areas of the city were “home to some of the lowest levels of self-response in the city.” The richest Americans had the ability to abandon the cities where they lived as they were being overwhelmed by the virus early on. But if those evacuees do not return to their home cities before the October deadline, it is hard to see how they will be included in the census as part of those communities.
Meanwhile, things are even worse than normal for areas and groups that are a traditional challenge for the census to count. The pandemic has decimated tribal lands and the self-response rates in those areas is anemic. The Navajo Nation has a 7% self-response rate versus nearly 30% in 2010; the Hopi have a similar response rates and the Havasupai, whose reservation has been closed because of the pandemic, has an unbelievable zero self-response rate. In South Dakota, the Rosebud Sioux Tribe’s numbers are 15% versus 38% in 2010. All of this implies that it will take an enormous effort for the Census Bureau to reach the roughly one-third of the population that still has yet to be counted, an effort that will be made even more challenging as the pandemic keeps raging and with an administration that has repeatedly shown its disinterest in counting certain populations.
Now Trump has dropped another bomb on this year’s census project by signing an executive order that states “for the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status”. This, of course, is patently unconstitutionally, a direct repudiation of the 14th Amendment that declares “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.” The “number of whole persons” says nothing about their immigration status, which is hardly surprising because there was no legal concept of an illegal immigrant when the 14th amendment was passed. The 14th Amendment superseded Article 1, Section 2 of the Constitution which established the horrific three-fifths compromise which treated slaves as 3/5ths of a person for taxation and representational purposes, thereby providing slave states with reduced taxes and increased political power. Trump now wants to essentially declare undocumented immigrants as non-persons, treating them even worse than slaves.
Trump’s legal justification for this attempted constitutional violation is remarkably thin, relying on the fact that foreign tourists and diplomats are not included in the count. According to Trump, the census “has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.” Even if one were to accept this legal justification, there is nothing in the law that gives the President the sole power to determine who should and should not be included.
Moreover, since the citizenship question was not allowed to be included in the census, there will be no data on the number of undocumented immigrants coming from the census, meaning they can’t be “subtracted” out. In addition, as the New York Times points out, “As a practical matter, Mr. Trump’s order could not be carried out even were it legal, because no official tally of undocumented immigrants exists, and federal law bars the use of population estimates for reapportionment purposes.” But, if the last decade has taught us anything, it’s that absurd legal arguments from Republicans will always have a serious hearing from the Federalist Society hacks that now litter the federal courts.
Trump’s threat regarding reapportionment will probably turn out to be empty and, in any case, it has no direct impact on the actual taking of the census itself. But other actions the administration has taken in conjunction with the executive order just might. The White House asked Congress for an additional $1 billion to be added to the next coronavirus relief package in order to conduct a “timely census”. Again, according to the New York Times, “The Census Bureau had previously sought permission to extend the tally of the hardest-to-count people into October and delay delivery of reapportionment population totals to next year. The $1 billion could allow the bureau to abandon that plan and accelerate the counting to deliver a reapportionment count to Congress in December, before Mr. Trump leaves office if he loses the election to former Vice President Joseph R. Biden Jr. It could mean that less time is devoted to counting the marginalized people than in a normal census, which experts believe would benefit Republicans.” The belief that Republicans would benefit may not be entirely justified as it appears that many of the red states in the South and the Mountain West are also seeing lower self-response rates compared to 2010.
The worry that less time will be devoted to counting hard-to-reach communities has been exacerbated by two new political appointees that the White House forced on the Census Bureau at the end of June, with one Census Bureau official noting, “No one has expressed any support for the decision [to create these new positions]…There’s great concern.” The two appointees are typically Trumpian, with one burnishing his right-wing credentials as a radio commentator while the other managed the failed congressional campaign of a Trump-supporting YouTube “celebrity”. House Oversight chair Carolyn Maloney objected, declaring, “The decision to create two new senior positions at the Census Bureau and fill them with political operatives is yet another unprecedented attempt by the Trump administration to politicize the 2020 Census.” A former Clinton administration official added, “There are two people ill equipped to actually manage the census. They’re very well equipped to advance political interests, especially of the Republican Party. That’s their background and their career goals. It’s unprecedented for two political appointees to be added to the bureau in the middle of a census count in the recent history of the Census Bureau.”
Finally, there is one other twist to this year’s census. For the first time, the Census Bureau is implementing a new policy called “differential privacy” as part of an effort to ensure maximum privacy protection. This policy will have no effect on the national and state reapportionment data. But it will purposely distort “community data including age, gender, race/ethnicity, relationship, family type, homeownership, household size and vacancy rate. By reporting numbers that are distorted, the technique is designed to make it harder to identify specific individuals, particularly by combining census data with other sources of information…the process of shuffling data to protect privacy at county, city and town levels as well as among different age or racial groups means the data will be incoherent or even erroneous…Census Bureau officials have said that injecting ‘noise’ into the data is needed to ensure privacy, and that the technique gives data scientists a good understanding of the level of uncertainty in the data. But other researchers have shown differential privacy to be ill-suited, harmful, untested and unproven.” According to one Penn State study, the use of differential privacy “produced dramatic changes in population counts for racial and ethnic minorities compared to the traditional methods”, with some discrepancies between the new and old methods exceeding 10%.
Getting the census right is critically important not only for reapportionment for the next decade both in Congress and at the state level but also for how and to whom the billions in government aid and funding that is driven by that census data gets distributed. In New York City, for example, every additional person in the census generates nearly $2,300 of education and over $280 of job training funding.
Everyone is focused on the disaster that is going to be November’s election, and rightly so. But, between the sabotage from the Trump administration and, more importantly, the pandemic, there seems to be a general consensus that this year’s census will be a mess as well, effecting red and blue states, college and prison towns, the richest urban centers, and the poorest communities. A state senator from New York City, representing one of the richest areas of the country, says, “The census is going to be another victim of the pandemic. I absolutely believe that. It’s going to really screw us. We’re going to lose congressional seats and money.” That opinion is echoed by a member of the Rosebud Sioux Tribe in South Dakota, declaring, “I’m really, really worried that this is going to be devastating to Indian Country.” And we will all have to live with the results of this potentially flawed process for the next decade.