September 17, 2020

Udall, Heinrich Denounce Trump Administration Attempt to Exclude Immigrants from Census Count, an Unconstitutional Move that Jeopardizes Fair and Accurate Congressional Representation

A fair and accurate Census count is critical to accurately reflecting state and federal electoral representation, but Trump administration decisions to cut the Census enumeration timeline a month short endangers a complete count for New Mexico

WASHINGTONU.S. Senators Tom Udall (D-N.M.) and Martin Heinrich (D-N.M.) joined a group of 19 senators to demand that the U.S. Census Bureau provide information about how the agency will use the data collected during the 2020 Census to produce a fair and accurate apportionment of federal representation across the country. The senators’ letter follows attempts by the Trump administration to undermine an effective Census count by spreading fear and misinformation within immigrant communities and cutting the timeline a month short. Last week, a federal court rejected President Trump’s executive order to exclude unauthorized immigrants from population counts that will be used to reallocate seats in the House of Representatives next year.

With less than one month remaining after the Trump administration arbitrarily cut the Census response period short, more than one-quarter of New Mexico’s population has not yet been counted. Just 86.1 percent of New Mexicans have been counted in the 2020 Census, which falls below the  current national average of 91.8 percent. An inaccurate count places billions of dollars in federal funding at stake and affects the apportionment of state and federal representation for the next 10 years. 

Meanwhile, the Trump administration has undercut the Census count among immigrant communities by attempting to include a citizenship question on the response form. While this attempt was blocked by the Supreme Court, the Trump administration has further tried to compile the information using alternative information from a patchwork of state and federal agencies. Last week, a federal court rejected President Trump’s executive order to exclude unauthorized immigrants from population counts that will be used to reallocate seats in the House of Representatives next year. 

“From the time of our founding, the Constitution established a democracy premised on the idea that all persons—no matter where they are from, regardless of whether they can vote—deserve representation in our government,” the senators wrote.

“Following the Supreme Court’s ruling to block this administration’s attempt to add a citizenship question to the 2020 Census, the president issued an executive order directing Commerce Secretary Wilbur Ross to collect citizenship information from other governmental sources,” the senators continued. “Per this directive, the Census Bureau has amassed a collection of administrative records from various sources—some from existing agreements with federal, state, and local agencies, and others from newly established partnerships.” 

The senators further highlighted the Trump administration’s unconstitutional attempts to undermine accurate federal representation. “This arbitrary collection of citizenship information implicates the president’s unconstitutional attempt to exclude undocumented people from fair representation in the Congress. Apportionment is a geographic division of congressional seats. If only certain states are sharing citizenship information—and the data shared is itself unreliable or inaccurate—and federal data sets do not capture all persons in the country, then the data available to the Census Bureau for apportionment tabulation will be incomplete and run afoul of the Constitution.  The resulting reapportionment report submitted to the U.S. House of Representatives by the president will be an inaccurate, arbitrary, and unconstitutional distribution of congressional seats across the country, based on states that either had or did not have citizenship information for selected portions of their population.”

The 2020 Census can be completed by phone, mail or online. The survey does not have a citizenship question and all information provided is kept confidential. Additional information on the Census collection, how to receive a form or how to fill it out can be found here.

The full text of the letter can be found below and is available here.

Dear Director Dillingham:

We write to raise concerns about the data and methodologies that the Census Bureau will use to develop apportionment counts for each of the states. With the president’s unconstitutional memorandum excluding undocumented people from apportionment, coupled with your agency’s decision to end the 2020 Census count one month early, we also raise serious concerns about a fair and accurate distribution of congressional representation—a fundamental and crucial aspect of our constitutional democracy. 

From the time of our founding, the Constitution established a democracy premised on the idea that all persons—no matter where they are from, regardless of whether they can vote—deserve representation in our government.  To ensure representation for all, the Constitution, through both Article I, Section 2 and the Fourteenth Amendment, explicitly requires the federal government to accurately conduct an “actual Enumeration” of the people. The Fourteenth Amendment places a clear duty on the federal government to count the “whole number of persons in each State.” In other words, the federal government must count all people living in the United States, whether they are citizens or non-citizens, whether they were born in the United States or in a distant part of the world, whether they are living here in accordance with our laws or not.

Furthermore, the framers of the Fourteenth Amendment considered immigrants, undocumented or otherwise, as people entitled to equal representation, insisting that the “whole immigrant population should be numbered with the people and counted as part of them.”  The Supreme Court has affirmed this constitutional understanding, emphasizing that “the Framers chose to use population . . . as the basis for representation,” and that “representatives serve all residents, not just those eligible or registered to vote.”

Following the Supreme Court’s ruling to block this administration’s attempt to add a citizenship question to the 2020 Census, the president issued an executive order directing Commerce Secretary Wilbur Ross to collect citizenship information from other governmental sources. Per this directive, the Census Bureau has amassed a collection of administrative records from various sources—some from existing agreements with federal, state, and local agencies, and others from newly established partnerships.

However, the collection of citizenship information is not uniform across the country.  This raises the prospect that the Census Bureau will have incomplete information as to the citizenship status of all persons residing in the country.  For example, some federal agencies have agreed to share citizenship information with the Census Bureau. However, a person’s immigration status can change over time.  The administrative data on a person is only as good as the moment when the agency interacts with that person.  For example, a person who entered the country without documentation may have received Deferred Action for Childhood Arrivals protection, or may have started a path to citizenship by serving in the military, or may have been granted asylum protection.  Depending on when a person interacts with an agency, their status may be very different from what it is currently.

At the same time, not every state is sharing citizenship data.  States such as Iowa, Nebraska, South Carolina and South Dakota agreed to share driver's license and state identification card information. But states like Pennsylvania, New Hampshire, and Illinois denied the Census Bureau’s request to share information. Furthermore, state administrative data on citizenship can be unreliable and inaccurate. As a result, your agency will have arbitrarily collected information based on state officials who decide to share or not information about their citizens, some of which will contain citizenship information, and some will not. 

This arbitrary collection of citizenship information implicates the president’s unconstitutional attempt to exclude undocumented people from fair representation in the Congress. Apportionment is a geographic division of congressional seats.  If only certain states are sharing citizenship information—and the data shared is itself unreliable or inaccurate—and federal data sets do not capture all persons in the country, then the data available to the Census Bureau for apportionment tabulation will be incomplete and run afoul of the Constitution.  The resulting reapportionment report submitted to the U.S. House of Representatives by the president will be an inaccurate, arbitrary, and unconstitutional distribution of congressional seats across the country, based on states that either had or did not have citizenship information for selected portions of their population. An arbitrary collection of data will produce a bad output based on that data—garbage in, garbage out.

In addition, the Census Act prohibits the Census Bureau from using sampling methods to determine apportionment.  In 1999, the U.S. Supreme Court rejected the Census Bureau’s proposed uses of statistical sampling to calculate the population for purposes of congressional apportionment following the 2000 decennial census.  A similar effort by the agency to use statistical sampling to determine the numbers of undocumented people in each state should be rejected by the courts. 

These problems are further exacerbated by the agency’s decision to end self-response and non-response follow up operations a month early—from October 31 to September 30.  The shortened schedule risks the accuracy of the Census Bureau’s data products, including the apportionment tabulation, and raises risks that errors will neither be found nor fixed.  A federal judge recently issued a temporary restraining order to stop the Census Bureau from winding down or altering 2020 Census field operations until a September 17 hearing.  Furthermore, the administration’s refusal to include statutory deadline extensions in their negotiations with congressional leaders on coronavirus relief legislation, raise questions about their commitment to addressing these concerns. 

To address some of these concerns, we ask that you provide answers to the following questions:

- In implementing Executive Order 13880, can the Census Bureau collect administrative record data uniformly and universally across the country?  If so, how?

- What are the models and methodologies that the Census Bureau is currently developing and studying to tabulate apportionment?  Does the agency have enough time to study, test, and implement these apportionment models and methodologies prior to the December 31, 2020 deadline?  How will these models and methodologies comply with the Census Act’s prohibition on the use of statistical sampling for apportionment purposes?

- An agency document on 2020 Census operations and data processing notes that “A compressed review period creates risk for serious errors not being discovered in the data – thereby significantly decreasing data quality.”  The document also notes that “serious errors discovered in the data may not be fixed — due to lack of time to research and understand the root cause or to re-run and re-review one or multiple state files.”  

- How will the Census Bureau ensure that its apportionment tabulation does not contain significant errors?

- As the Census Bureau implements the president’s July 21, 2020, memorandum, how will you ensure that the apportionment tabulation is developed in a way that is not arbitrary when the agency uses administrative data collected through agreements with other federal, state, and local agencies that is not uniformly shared and may contain errors and inaccuracies?

- To what degree of confidence can the Census Bureau assure the public that its apportionment tabulation is not arbitrary, does not contain significant errs, and is a fair and representative distribution of congressional seats?  What is the basis for the agency’s confidence, considering many of the quality assurance processes that will be side-stepped or completed hastily under the condensed timeframe?

These questions raise serious concerns about one of the most fundamental constitutional activities: the apportionment of congressional representation.  With the end of the 2020 Census and the apportionment deadline fast approaching, we request your written response by September 24, 2020.  Thank you for your attention to our request.

Sincerely,