Ringo Chiu/AP Photo
Civic organizations worked hard to spread the word about the census in hard-to-count communities.
On December 31, 2020, the Census Bureau missed a crucial deadline that caused a huge sigh of relief in Democratic circles. Statutory law dictates the Bureau must report the data that will determine reapportionment of House seats to the president by the end of the year. But a global pandemic and administrative interference combined to make this impossible. It was the first missed census deadline since the December 31 date was established in 1976. As of January 12, bureau officials were telling courts that they were now working toward completing the count by March 6, 2021.
The delayed timeline puts the data out of the reach of Donald Trump. In 2019, his administration pushed to add a citizenship question to the census, but was rebuffed by the Supreme Court because of procedural violations, like failing to notify Congress about the changes. But Trump never gave up trying to exclude immigrant populations from the count that would be used for reapportionment and redistricting, in an effort to rob people of color of representation and to boost states with smaller immigrant populations.
Whether through the Bureau slow-walking the release or merely attempting to ensure an accurate count, the delay means that this attack on undocumented people has, for the moment, failed. “It’s better that it turns out this way. The route that we’re going now is the more cautious,” said Sam Wang, a neuroscience professor at Princeton who runs the Princeton Election Consortium.
Nevertheless, these efforts instilled fear in immigrant communities, and may have deterred them from responding to the census. Indeed, the shortened timeline imposed by Trump required that the Bureau take shortcuts that cannot be undone by the incoming Biden administration. And between this and other Trump administration machinations, an undercount is still very possible—even likely. Especially with the right wing entrenched on the Supreme Court for a generation, we could see significant game-playing with the census data, even in the near future. The near-miss from the departure of Trump, in other words, may still boomerang back to damage democracy.
THE DECENNIAL CENSUS—which is all about counting where people are on April 1 of the enumeration year—was clearly going to be complicated, given the pandemic. Not only was the door-to-door follow-up hampered by fears of contracting COVID, but people had moved unpredictably: Impoverished people struggled to stay housed, college students left dormitories, young Americans moved back in with their parents, and elderly people moved out of nursing homes. The Bureau could no longer count on people being where they usually were, and hard-to-count populations became harder to count, making respondents likely to be whiter and more affluent.
“Folks who were already the easy-to-count folks, households in the middle and upper-middle class in wealthy suburbs,” said Robert Santos, vice president and chief methodologist at the Urban Institute. “The folks who were most affected, lost jobs and they had to carry out online school, they also happened to be the folks who were the hardest to count.” Census officials supplement the count with high-quality administrative data like IRS tax forms, Social Security, and government health plan records, to estimate the number of people at a nonresponsive address. But many people who live in the United States, particularly undocumented immigrants, would have none of these forms. “The hard-to-count communities are also the ones that tend to have the worst administrative data available,” Santos said.
Civic organizations worked hard to try to spread the word in these communities, explained Beth Lynk, Census Counts Campaign director at the Leadership Conference on Civil and Human Rights. She pointed to tele-town halls, partnerships with food banks and postmasters general to deliver gift bags with census information, and Stop the Knock campaigns that encouraged self-participation online for those afraid of contracting COVID or fearful of the government coming to their door. “The infrastructure and the scope and scale of it was unprecedented,” Lynk said. The campaigns saw a marked increase in participation, and the model could be used to support disaster relief and vaccine distribution. “This is infrastructure that can be used for civic engagement,” Lynk explained.
During the “field period,” the Census Bureau attempts to count nonresponsive households. Because of the pandemic, Santos said there was a “general understanding” from Congress and the White House that the Bureau would have an extra 120 days for the field period. Instead, the White House demanded the Bureau meet the statutory deadline of December 31 for apportionment, condensing the time in the field. Not only did the administration shorten the period for door-knocking, but it also pushed the Bureau to rush the data processing, where the Bureau sorts out any anomalies, such as double-counting. “They had to cut corners and they had to find new ways to make the delivery,” Santos said.
In sworn testimony, Howard Hogan, a former demographer at the Bureau, emphasized the problems with a shortened timeline. “[T]he compressed schedule for post data collection processing carries a grave risk of a greatly increased differential undercount,” he wrote.
Since its inception, the census has always been about political power and who has it.
Furthermore, even after losing the citizenship question effort, the Trump administration continued to devise ways to exclude undocumented immigrants from the count. An executive order in July 2020 directed the Bureau to exclude undocumented people from apportionment of representatives to the states. This appears to be at odds with the plain language of the Constitution, which states that the census must count “the whole number of persons in each State.” But if followed through, a state like California, with a high percentage of undocumented immigrants, would lose votes in the Electoral College and seats in the House of Representatives, while whiter states in the Midwest or the Plains could stand to gain.
The Supreme Court ruled in December it was too soon to rule on whether the administration can exclude undocumented immigrants—which may be because Trump will be out of office before the Bureau even hands over the data. In mid-January, the Bureau stopped all work on excluding undocumented immigrants from the count. But other potential flashpoints loom.
A more devious executive order from 2019 asks the Bureau to share citizenship data. That data could be obtained by states to inform their redistricting process, where they set the district lines for seats in the House of Representatives, state legislatures, and other offices. Some experts argue that redistricting may be decided on different principles from apportionment. This could lead to whole populations being discounted in redistricting, leading to lower representation for immigrant-heavy communities.
One problem with this is that the ability to designate undocumented populations is limited, said Justin Levitt, a constitutional scholar at Loyola Law School in Los Angeles. “Trump said give me as close to a complete count of the undocumented population that we can,” he explained. “That’s not something we have the data for. That’s impossible and also illegal. We don’t have a database of the undocumented population. We don’t have a database of documented citizens and so there’s no way to actually get an answer that’s a real count.” Despite this, Trump’s census director rushed to complete a dataset about undocumented immigrants, according to an internal inspector general’s report.
Whether the data is at all usable may not matter if conservative states decide to fight to exclude undocumented immigrants in redistricting, using either federal data or data they’ve come up with on their own. As Sam Wang notes, this attempt would certainly get challenged in federal court. “If it came to the Supreme Court—which has moved to the right—I think the likely path is that it will become possible,” he said. Other experts think a state would lose in federal court, but the new makeup of the federal bench makes this unpredictable.
To understand the potential impact, think of a fast-growing area with a high immigrant population, like Fort Bend County, Texas. The population there has jumped nearly 40 percent since the 2010 census, according to the Bureau’s data, and only 32 percent of the county is now white and non-Latino, with large populations of Black, Latino, and Asian immigrants. If Texas can simply ignore what they believe are undocumented immigrant populations in redistricting, Fort Bend County would probably get packed into a district with whiter outlying areas, making it likely that the seat stays in Republican hands.
Wang says the best way forward is to prevent it from happening in the first place—before it gets tested in court. But a statute barring states from excluding undocumented immigrants from redistricting would have to pass through the incredibly thin margins in Congress, which isn’t entirely likely. That leaves it up to the courts, which have gotten far more conservative over the past four years.
Even if states are barred from excluding immigrants from redistricting, the Trump administration’s scheming has “already done a fair amount of work to sabotage the accuracy of the census,” said Levitt. “That’s something that can’t be undone by a new administration. At this point, the records are what they are. Just the baseline records of how accurate the census is.”
Yichuan Cao/ SIPA USA via AP Photo
Conservative states may fight to exclude undocumented immigrants in redistricting, with a favorable Supreme Court available to approve the action.
SINCE ITS INCEPTION, the census has always been about political power and who has it. In the Constitution, the power to conduct the census comes first, before the power to levy taxes or make war. “It comes before each and every thing the federal government is given the power to do because the conduct of the census determines political power and tells you who the federal government is and later shapes state and local representation,” explained Levitt.
The statistics determine not only who has political representation, but who gets funding. Congress slices up money to states for all sorts of grants, from transportation to community development, based on the census data. The census determines how a representational group is determined for public polling or how a real estate developer determines where to build. Whether a community gets a grocery store depends on how businesses read census data to decide whether their store would be profitable. The American Community Survey, which gathers in-depth information more regularly but from a smaller population, comes from census data. The count of 2020—and the undercount—will be the foundation upon which thousands of other data points are based.
With each census, there are renewed calls to make it more accurate. “Over the last 100 years, there have been big battles over the questions of accuracy and how to improve it,” said Margo Anderson, a historian of the U.S. census. But in 2020, the complications created by COVID-19 and the fear engendered in communities of color by the Trump administration are helping to set up significant undercounting. “It’s setting up for one of the worst undercounts of people of color that we’ve seen in a while,” Santos said.
Some political leaders have an interest in an undercount as a means to further entrench their power. The statistical portrait of America that Republicans prefer is simply whiter than reality, because white people vote for Republicans at higher rates. Trump’s interference was at least in part about securing minority rule. Bureaucrats are trying to do their best to get the most accurate count possible. But they can’t make major statistical adjustments in the data, such as weighting to account for undercounting.
“They [the Census Bureau] want to do the right thing,” Santos said. “They’re simply not being allowed to do the right thing.”
