Laura Gómez, professor of law, sociology and Chicana and Chicano studies at UCLA, has been paying close attention to the debate surrounding the proposed inclusion of a citizenship question on the United States census.
We asked Gómez to help parse the impact of the Supreme Court decision handed down on June 27 that blocked inclusion of a citizenship question on the 2020 census.
Here are five things to know about the Supreme Court’s 5-4 ruling — which she calls a “victory for equality.”
The decision has likely prevented the inclusion of a citizenship question on what is known as the short-form census questionnaire for 2020.
“Given the imperative to complete the census on time and the six other pending lawsuits over the citizenship question, the high court has signaled it will not consider the issue further,” Gomez said.
At least one or two of the other pending lawsuits are likely to result in wins for the plaintiffs, at the district court level, and one of those courts may well issue an injunction to bar the printing of the census short form that includes the question, she said.
The inclusion of the language would likely have a disproportionately adverse effect on some of the most populous states in the nation.
“What’s at stake is not simply enumeration of the nation’s population as mandated by Article 1 of the U.S. Constitution, but what follows from that every decade: apportionment of districts for the House of Representatives,” Gómez said.
Undercounting of Latinos stands to have a negative impact on congressional representation for four of the nation’s most populous states — California, Texas, Florida and New York — all of which have large numbers of people of color as well as immigrants.
“We know that the nation’s 10.5 million undocumented immigrants — roughly two-thirds are immigrants from Latin America, with another 1.5 million from Asia — are concentrated in six states, including the four most populous,” Gómez said.
It’s not just about undocumented immigrants.
Proponents of including the citizenship question have argued that it is just “common sense” to know the citizenship status of all U.S. residents. But the Census Bureau’s own research shows that including this question is an indirect means of undercounting all Latinos or people who live in neighborhoods with high concentrations of them, citizens included, Gomez said.
“At its root, the proposed citizenship question would have resulted in unequal protection of the law for communities with high numbers of immigrants, whether they are here with or without documentation,” she said.
Beyond the case decided June 27, there are six other lawsuits regarding the citizenship question.
Plaintiffs include 18 states and the District of Columbia, seven cities, individuals, civil rights and immigrant organizations, as well as the Latino caucuses in the legislatures of California and Texas. They all are arguing they will be hurt by the undercount that would result from including the citizenship question, as the Census Bureau’s own research has shown.
Earlier in the week, the Fourth Circuit remanded one case (Kravitz v. Department of Commerce) so that the judge hearing it may reconsider, given the release last month of shocking new data, Gomez said.
The ACLU was the conduit for a treasure trove — from the plaintiffs’ perspective — of reports, emails and other documents belonging to Thomas Hofeller, a deceased Republican strategist who hatched a plan to suppress the 2020 count of Latinos by inserting a citizenship question, she said. It turns out he was talking with political appointees at both the department of justice and Census Bureau.
“We don’t know what Judge Hazel will do now that he has the case back, but it certainly looks like a smoking gun that damns the addition of the citizenship question,” Gomez said. “That the conservative Fourth Circuit granted permission for Maryland to take back the case is significant. Along with the ruling from the Supreme Court, plaintiffs are going to be energized and the judges hearing the case now don’t have the excuse of deferring to the Supreme Court.”
Those lawsuits will proceed. If the administration loses them, they can appeal, but the Supreme Court won’t be in session again until October and would have to take extraordinary steps to hear the case, Gomez said. This does not seem likely given that Chief Justice Roberts authored the June 27 opinion.
Gomez also said she thinks it is unlikely the administration will carry out President Trump’s threat to delay the census, which he tweeted after the high court’s ruling.
The history of the census is rife with examples of how data on nationality and/or race has been used to oppress and exclude non-white people.
“On the one hand the enumeration clause in the Constitution was rife with exclusion,” Gómez said. “Enslaved Blacks counted as three-fifths of a person, as a compromise to increase the number of congressional representatives for the southern states. Indians were specifically excluded unless they denied their tribal membership.” Gómez added, “But, on the other hand, the founders, with respect to white people, mandated that everyone count — men and women, adults and children, citizens and immigrants.”
After the Emancipation Proclamation, African Americans were counted as full persons, but the census continued to put people into racial categories, something that continues today. In the first census taken after the Civil War, the category “Chinese” appeared, coinciding with white workers’ violent protest against Chinese labor (especially in California). The California legislature strictly limited the rights of Chinese immigrants, and in 1882, Congress excluded all Chinese immigrants from entering the United States.
In the midst of the Great Depression, the 1930 census added “Mexican” as a racial category and local governments used it to conduct mass deportations. By 1940, the Mexican American and Mexican population of Los Angeles County had shrunk by more than a third due to deportations and “voluntary” returns to Mexico.
“Perhaps most horrifically, the 1940 census was used to roundup Japanese Americans and Japanese nationals, since data collected by the census includes home addresses,” Gomez said. “The result was the incarceration of 120,000 men, women and children.”