2020 Census citizenship question could spur legal battle over citizen-only redistricting

The Trump administration’s decision to include a controversial question about citizenship on the 2020 Census could set the stage for a larger legal battle over the way state legislative boundaries are crafted.

The outcome of that fight, which would likely be played out in the once-a-decade reapportionment that follows the 2020 Census, could result in a political power shift from urban, largely Democratic strongholds to suburban and rural areas where Republicans typically hold sway.

“It’s critical that the next redistricting cycle account for the citizen residents of districts so urban centers do not unfairly profit from the political subsidy that higher noncitizen populations provide,” said a statement by J. Christian Adams, president of the Public Interest Legal Foundation, a conservative voting rights group.

If citizen-only population counts were applied to congressional districts in 2020, researchers have found it would cause Arizona, California, Florida and Texas, states with large immigrant populations, to collectively lose eight congressional seats.

Former Attorney General Eric Holder has said it’s “contrary to the equal population requirement and the long-standing principle of one person-one vote” to draw political maps based on any criterion other than total population.

Civil rights leaders, immigration advocates and big city mayors say a citizenship question would depress census among the nation’s immigrants, many of whom are reluctant to disclose their residency status amid the Trump administration's crackdown on illegal immigration.

Advocates say a large undercount of immigrants would hurt the accuracy of the overall census and shortchange states, cities and local governments of population-based federal funding for everything from highways and housing to schools and health care.

By law, the census tries to count every person in the U.S., including non-citizens, in order to redraw political districts — based on total population — for the 435 seats in the U.S. House of Representatives.

But in a 2016 U.S. Supreme Court case, Evenwel v. Abbott, plaintiffs argued that states should be able to use the citizen-only population in determining state legislative districts. Although the high court ruled that political districts could be based on total population, including non-eligible voters, their decision left open the possibility that states could use other data to draw their electoral maps.

Citizenship data collected from the new census question would work just fine, said Edward Blum, who launched the Evenwel case as president of the conservative Project on Fair Representation.

“If jurisdictions decide that during the redistricting process, they wish to equalize for citizenship, along with total population, that will now be a viable option for them,” said Blum, also a visiting fellow at the American Enterprise Institute. Blum, who has launched numerous lawsuits against affirmative action policies and voting rights laws nationwide, said Commerce Secretary Wilbur Ross made a “good decision” to include the citizenship question.

The Department of Justice said it originally asked for the citizenship question to get data to better enforce a provision of the Voting Rights Act designed to protect minority voting strength.

But they’ve also asked that any citizenship data gleaned from the 2020 Census be included in redistricting files that go to states for post-census reapportionment.

Republican lawmakers like Rep. Steve King, R-Iowa, have been calling for citizen-only political districts for several years. Conservative voting rights groups are also onboard with the idea.

“Only citizens should be given political power. Our current system leads to noncitizens being allocated political power in legislatures at the expense of citizens,” said Adams, of Public Interest Legal Foundation.

Demographer Dudley Poston of Texas A&M University and Amanda Baumle, a sociologist at the University of Houston, estimate that Alabama, Louisiana, Michigan, Minnesota, Montana, Ohio, Pennsylvania and West Virginia would each pick up a seat in Congress if citizen-only populations were used to draw congressional districts in 2020.

The addition of those seats, at the expense of California, Florida, Texas and Arizona, would boost the political clout of Midwest and Rust Belt states that have long been losing population and congressional seats.

The Census hasn't asked about citizenship on the short form that goes to most households since 1950. But a citizenship question is included in the American Community Survey, a Census Bureau sample survey conducted annually to provide updated demographic information.

Still, the citizenship question was a source of controversy among those familiar with the census process.

In a January letter, six former Census Bureau directors called on Commerce Secretary Wilbur Ross to reject the DOJ’s “untimely and potentially disruptive request" to include the citizenship question which had not been tested to determine its effect on response rates.

“We strongly believe that adding an untested question on citizenship status at this late point in the decennial planning process would put the accuracy of the enumeration and success of the census in all communities at grave risk,” the directors wrote. Nineteen Democratic state attorneys general also sent a letter to Ross saying the citizenship question is unconstitutional.

But the Trump administration pushed hard for its inclusion. Last week, Trump’s reelection campaign sent an email to supporters that stated, “The President wants the 2020 United States Census to ask people whether or not they are citizens. The President wants to know if you’re on his side.”

“That email laid bare the political agenda behind this question,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights. “This decision is wrong for our country. It’s wrong for our communities. And it’s wrong for our democracy and we will fight to overturn it.”

If Congress doesn’t take action to scrap the question, Gupta said the civil rights community will look at legal action.

New York Attorney General Eric Schneiderman has issued a statement saying he would file a lawsuit to block the citizenship question on behalf of New York and other states when the Commerce Department submits its full plans for census questions to Congress.

California Attorney General Xavier Becerra also filed a federal lawsuit on Tuesday against the Commerce Department seeking to block the move.

Blum said he doesn’t intend to mount another legal challenge over citizen-based reapportionment.