When the Supreme Court delayed the addition of a question on citizenship status to the 2020 census, it called on the Commerce Department to provide a new rationale for including it. President Trump has indicated that his administration will press ahead on this issue.
Fortunately, there is a compelling rationale for including the question on the census. This is the need to measure how far the apportionment of the U. S. House of Representatives and the states’ legislatures has deviated from the constitutional gold standard of “one person, one vote.”
Traditionally, seats in the U. S. House of Representatives and state legislatures (and votes in the Electoral College, which equal the states’ representation in Congress) have been allocated based on gross population numbers, including non-citizens and even illegal residents. Yet these non-citizens do not vote (or at least they are not supposed to).
The result is that citizens living in areas with large numbers of non-citizens have more legislative representation per capita than citizens living where there are lower numbers of non-citizens. This violates the fundamental principle that each voter’s vote should count equally.
How We’ve Deviated from One Voter, One Vote
These deviations from what could be best described as the “one voter, one vote” principle comes from the uneven distribution of non-citizens among and within our states. The Census Bureau’s American Community Survey in 2014, which asked about citizenship status, found differences ranging from 14 percent of California’s population who are non-citizens to less than 1 percent in West Virginia. As a result, California, the first sanctuary state, has five or six more members of the House (and consequently Electoral College votes) through counting its non-citizen population than if House seats and Electoral College votes were based only on the nation’s citizen population.
The ranges can be equally large within states. For example, the ACS found that non-citizens make up 17.6 percent of New York City’s population, but only 5.2 percent of the rest of New York state.
Based on these differences in non-citizen population, New York City has one more seat in the U.S. House, two or three more seats in the New York state senate, and at least five and probably more seats in the state Assembly than it would have if apportionment were based on New York’s citizen population. This gives New York City residents such as Donald Trump, Bill de Blasio, and me significantly more voting power than New York voters who live outside the city. Such distortions of voting power within states can be found across the country.
This argument is often cast as seeking a partisan political advantage for Republicans. However, a “one voter, one vote” apportionment can cut both ways. Democratic-leaning African-Americans have citizenship rates equivalent to whites, and could be advantaged by apportionment based on the citizen population.
Conversely, rural Republican-leaning areas with large numbers of migrant laborers could be disadvantaged. And Democratic-leaning Rhode Island, which is in perpetual risk of losing its second congressional seat at each census, would be much more likely to keep it in a re-apportionment based on citizen rather than gross population.
The Rationale for Including the Citizenship Question
The Constitution requires that apportionment of the U. S. House of Representatives be based on “the whole number of persons” in each state. Assuming that meant the gross population made sense at a time when women did not have the vote, but made up half the population.
However, constitutional attorneys David Rivkin and Richard Raile argue that the original understanding of that phrase was to include only permanent residents, which today would correspond only to citizens. Indeed, the current practice of using gross population is an unfortunate legacy of the early days of our nation when slave states were able to count their slaves as three-fifths of a person in apportioning legislative seats.
In its 2016 decision in Evenwel v. Abbott the Supreme Court ruled that the Constitution did not require that apportionment be based on the citizen population. However, that case did not determine whether it was permissible for a state or the Congress to apportion based on the citizen population rather than the gross population.
With more than 1 million legal immigrants every year since the ACS survey in 2014 and untold numbers of illegal residents, the deviations from “one voter, one vote” will be even greater today. There is a good argument that, as a public policy matter within legislatures’ constitutional authority, the U. S. House of Representatives and state legislatures could choose to apportion themselves on the basis of citizen population.
Our country should be governed equally by all of its citizens, with political power evenly allocated on a “one voter, one vote” basis. However, to do that, we will need the data from the citizenship question on the census.
Here’s the Strategy Trump’s Admin Should Use
The administration can accomplish this with a three-part strategy. First, it should start printing the census forms with the citizenship question. If their court advocacy fails, a notice can always be included with the census forms indicating that the citizenship question is optional.
Second, the administration should immediately issue and file in the relevant courts a statement that the citizenship question is about voting rights, but more broadly conceived than just the Voting Rights Act enforcement that it originally used as a rationale. The question is about realizing equal allocation of political representation on a “one voter, one vote” basis.
Third, the administration should request that the Supreme Court reconvene, stay all lower court proceedings, and consider the case on a highly expedited two-week schedule. A “one voter, one vote” rationale stands as a matter of law, and does not require any fact-finding. This will enable the court to provide the definitive resolution that it should have provided last week. It is entirely proper that the census seek to assure that our nation and states are to be governed on a basis of true equal representation of all citizens.