Census, citizenship, immigration, Kobach, law, politics

Counting Heads: The Census Controversy

By Grace Lidia Suárez

Yesterday the Kansas Secretary of State, Kris Kobach, wrote an article for Breitbart explaining why he wants the Census to ask people if they are citizens. I have read the article twice, checked the citations, and frankly, his reasons make no sense.

I’m going to attempt to unpack them here. It is possible I missed something, and I would love to hear from any of you who have different views. No seagulls please.

He begins by asserting,

If you asked most people whether the federal government knows the number of citizens in the United States after each decennial census, they would answer yes. After all, that’s one of the main purposes of the census. Unfortunately, we don’t get that information.

Actually that is not the purpose of the census. The Founding Fathers baked the census into the Constitution, and determined that “persons” should be counted, not citizens. (U.S. Const., art. I sec. 2.) So his first assertion is, to put it mildly, a misstatement.

After talking about the history of the census, he says,

Aside from the obvious fact that every sovereign nation ought to know how many citizens it has, there are even more important reasons to know this information. The very principle of one person, one vote, is at stake.

Right now, congressional districts are drawn up simply based on the number of warm bodies in each district. Not only are legal aliens counted, but illegal aliens are counted too. As a result, citizens in a district with lots of illegal aliens have more voting power than citizens in districts with few illegal aliens.

Think of it this way. There are about 710,000 people in each congressional district. But, if half of the district is made up of illegal aliens, then there are only 355,000 citizens in the district. The value of each citizen’s vote in such a district is twice as high.

That is unfair. As Iowa Representative Steve King (R) put it: “Maxine Waters (D-CA) … only needs about 40,000 votes to get reelected in her district and it takes me over 120,000 in mine because hers is loaded with illegals and mine only has a few.”

Let’s look at this extraordinary idea. Obviously just asking people if they are citizens accomplishes nothing except telling us how many citizens live in America at the precise moment of the census. That is what he says in part of the first sentence. He does not explain why “every sovereign nation ought to know” this. But we’ll let that pass.

Kobach then reveals his true motive. He wants congressional districts to be drawn up based not on the number of humans in each area, but on the number of citizens.

Before talking about this some more, he quotes from a Supreme Court opinion that has nothing to do with counting citizens. Kobach says:

And the Supreme Court suggested long ago that that would be unconstitutional. As Justice Black wrote in the landmark 1964 case of Wesberry v. Sanders:

We do not believe that the Framers of the Constitution intended to permit … vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected ‘by the People,’ a principle tenaciously fought for and established at the Constitutional Convention.

The 1964 Court didn’t consider vote dilution caused by illegal aliens, which hadn’t become a problem yet and wasn’t a question in the case. But it is clear that the same reasoning applies.

The case he cites has to do with a state’s refusal to count people equally. Not citizens. People. Here are the facts of the case:

Appellants are citizens and qualified voters of Fulton County, Georgia, and as such are entitled to vote in congressional elections in Georgia’s Fifth Congressional District. That district, one of ten created by a 1931 Georgia statute, [n1] includes Fulton, DeKalb, and Rockdale Counties, and has a population, according to the 1960 census, of 823,680. The average population of the ten districts is 394,312, less than half that of the Fifth. One district, the Ninth, has only 272,154 people, less than one-third as many as the Fifth. Since there is only one Congressman for each district, this inequality of population means that the Fifth District’s Congressman has to represent from two to three times as many people as do Congressmen from some of the other Georgia districts.

In other words, Georgia had drawn congressional districts that contained wildly disparate numbers of people.

This was the Court’s holding:

While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us.

Let’s look at Rep. Steve King’s assertion that Waters needs “40,000 votes to get reelected in her district and it takes me over 120,000 in mine because hers is loaded with illegals and mine only has a few.”

According to Ballotpedia, which takes its numbers from the Iowa Secretary of State, there were 370,259 votes cast in the 2016 election in Iowa’s Fourth Congressional District, King’s district, which has 585,305 humans in it. King needed one more vote than his opponent, who received 142,993. He got 226,719, way more than he needed to win.

There were 219,516 citizens who voted in California’s 43rd District election in 2016, of a total population of 702,983. Of those, 167,017 voted for Maxine Waters and 52,499 for her opponent. Obviously she didn’t need 167,000 votes to win. She needed 52,500. She could not have won with 40,000 votes.

In short, King’s (and Kobach’s) assertion makes no sense.

Something else Kobach does not tell his readers is that in order to apportion representatives on the basis of citizenship we would have to amend the Constitution. Right now, Article I, section 2 and the Fourteenth Amendment refer to “persons.” Not citizens, not voters. Persons. All Kobach says about that is,

If and when the citizenship question is ever returned to the census, and Congress considers excluding illegal aliens from the apportionment process …

Rather misleading isn’t it?

So what’s the harm in asking?

Many people, including some Senators, think this is what could happen:

The DOJ’s request to include a question on citizenship in the 2020 Census dramatically increases our concerns about the already troubled census. Such a question would likely depress participation in the 2020 Census from immigrants who fear the government could use the information to target them. It could also decrease response rates from U.S. citizens who live in mixed-status households, and who might fear putting immigrant family members at risk through providing information to the government. As you testified before Congress, the Census is already grappling with “high levels of mistrust of the federal government.” The addition of a citizenship question would only further exacerbate an already severe obstacle facing an accurate count in 2020. (Letter of January 5, 2018 from Sensators Feinstein et al to Secretary Wilbur Ross.)

Kobach laughs these concerns off by saying,

It’s hard to see why anyone would be afraid, when the federal government is prohibited from using census answers against anyone and when the form itself states very prominently that a person’s answers “are protected by law.”

But laws can and have been changed.

And they have. In World War I, census data was used to identify possible draft dodgers, and in World War II, even more ominously, to identify and detain Japanese Americans. Is there a question in anyone’s mind that Trump’s ICE will use this data to conduct targeted raids on the homes of non-citizens, or at the very least, “knock and talks?”

He adds, again without analysis:

That willful ignorance has other consequences, beyond vote dilution. The federal government needs information—lots of information—to calculate where people are living and moving. Adding the citizenship question will give the government enormously valuable information about the movement of people in and out of the country. For example, we don’t have any idea how many aliens on temporary visas actually leave the country when their visas expire. Plus federal surveys and data collection efforts (like calculating unemployment) would be much more accurate if the census data contained citizenship information.

How will asking if people are citizens determine whether aliens on temporary visas leave the country? And how would citizenship information make any information more accurate?

Finally, Kobach drops a last bit, unsupported by any argument:

In addition to all of the reasons mentioned above, collecting this information will help the Justice Department better enforce the Voting Rights Act.

How? He does not bother to tell us.

He ends by wrapping himself in platitudes:

It’s time to end this ignorance. A great nation must, at the very least, know how many citizens it has.

Actually, we do know that. We know how many people are born annually in the United States, how many are naturalized, how many abandon their citizenship, and how many die. Do the math and you get the number of citizens in the United States. Gee, if the Kaiser Family Foundation can do it, you’d think the US government can too.

While it is true that the government collects citizenship data in the American Community Survey, that is only for 1 in 485 households. While that seems adequate for legitimate purposes, it is not the same as obtaining such information on every human in the country.

My opinion, for what it’s worth, is that Kobach has not made any valid arguments for collecting citizenship data from every person in America. The benefits, which are not shown by him, are far outweighed by the dangers.

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