With all the controversy over drawing congressional districts and gerrymandering, it’s easy to forget that there’s an even bigger issue that drives the redistricting in the first place – the US Census. But why is the census such a big deal? Here are some facts about the census to help explain why the census is so important, and why it’s even more important that the census remain a non-political operation – something that’s in danger of changing under President Trump.

What is the census, exactly?

The US Census is a constitutionally mandated count of the population of the country that takes place every ten years.

I don’t remember reading about the census in the Constitution, though…

You did. It just wasn’t called the census. The actual wording from Article 1, Section 2, Clause 3 is “Representatives…shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined…. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

How do we conduct the census?

We have a Census Bureau, which is housed in the Department of Commerce, that conducts the census.

Is that all they do?

They also take the census of a few other things. They conduct the American Community Survey each year, which collects much more detailed information than the ten-year census, as well as surveys on other topics like housing and the economy. This data is publicly available and is used for, among other things, determining the distribution of federal grant money, market research by businesses, and research by scientists. The data also helps determine things like areas that need new infrastructure like roads and bridges and is used for emergency management planning.

That’s a lot more than just counting how many people there are. Can they really do that?

Yup. The language used in the Constitution is broad and doesn’t say that the ONLY thing that can be counted is the number of people. Over the years, Congress has enacted laws that permit the collection of this type of data, and the courts have repeatedly ruled that the collection of more data than just a headcount of the population is perfectly legal. For more information on what the census is and is not permitted to ask about, as well as how the data is collected, check out this article – written by the same special master (Nathaniel Persily) who has just redrawn the NC legislative districts after Republicans failed to redraw the districts in line with court rulings.

Counting seems pretty straightforward and simple. So why is it a big deal?

It seems like it should be pretty straightforward and simple, but it’s not, even if politics don’t play a role. For example, one major issue faced by census takers is how to accurately count everyone. Not everyone has a fixed address – people who are experiencing homelessness, for example, or someone who may be in and out of medical facilities. People who are undocumented immigrants are often wary of participating in the census for fear of retribution or being discovered. And not everyone responds to the census, even though it’s mandatory. The term for the portion of the population that isn’t counted in the census is the “undercount.” The Census Bureau has been struggling with ways to reduce the undercount. One important step they took beginning in the 1940s was to actually study the undercount and the reasons behind it.

The undercount has very real implications. Remember the language in the Constitution? The census data is used to “apportion” members of the US House of Representatives – that is, to determine how many Representatives each state has. Right now, each Representative represents about 700,000 people. That number has changed over time, as has the number of Representatives (in the Constitution, the original number of Representatives was 65 – today, there are 435 Representatives). But there’s a very real risk that an undercount could result in the gain or loss of a Representative for a state. In fact, in 1999, the Supreme Court faced this very situation. The Census Bureau announced a plan to use sampling to correct for the undercount in the 2000 census. Sampling is something used in studies and medical tests. Think about having your blood drawn – they don’t take all your blood to test it – they take only a sample of it. Sampling is generally regarded as very reliable and accurate. However, it was very possible that if the Census Bureau used sampling, the state of Indiana would lose a Representative.

In 1999, the Supreme Court was asked to rule on the constitutionality of sampling as a tool to correct the undercount in the 2000 Census. There was a real chance that if sampling was used, the state of Indiana would lose a congressional representative due to population changes. The US House of Representatives filed a lawsuit against the Census Bureau to stop the use of sampling.

Outcome: The Supreme Court held…

  • When conducting the constitutionally-mandated census to determine the amount of congressional representatives each state gets, the only acceptable method is an actual headcount. Sampling or any other technique is not permitted.
  • The language of the Constitution prohibits anything other than actually counting each individual person when it comes to determining the number of congressional representatives for each state.
  • The Supreme Court left open the possibility that sampling or other statistical techniques designed to correct the undercount could be used for other legitimate purposes, such as redistricting, but has not conclusively ruled on any other issues.

You said something about the census being political. That doesn’t seem like a political issue, though.

It is, though, because of who makes up the undercount. Historically, the undercount is made up of minorities, while whites tend to be overcounted. During the 2000 Census, it was determined that there was an overcount of 0.5 percent. During the 2010 Census, that went down to 0.1 percent, which was an improvement, but there was still an undercount of approximately 1.5 million people, most of whom were minorities. The 2010 Census failed to count 2.1 percent of African Americans, 1.5 percent of Hispanics, and 4.9 percent of Native Americans living on reservations. In fact, the Census Bureau determined that part of the reason for the overcount was that affluent whites who had multiple homes were counted more than once. While it is not a universal truth, minorities typically tend to vote for Democrats. Democrats are also generally supportive of the idea of sampling. Republicans tend to be opposed to sampling. Minorities do not typically vote for Republicans. See why this could be seen as political?

In addition, the types of questions asked on the census forms can cause political issues. For the first time in 2020, the census will include a question on sexual orientation, which advocates celebrate. It was originally going to appear in the American Community Survey, but the Trump Administration has worked to roll back that decision. Questions about topics such as citizenship could increase the undercount because of fears by undocumented immigrants about the information being used for immigration enforcement activities. Unfortunately, that may be just what the Trump administration is trying to do. In a December 12, 2017 letter from the Justice Department, the Census Bureau was asked to include a question on citizenship – supposedly for the purposes of better enforcing civil rights and preventing discrimination against minorities in voting. Critics point out that the DOJ has used information from the American Community Survey for many years to enforce voting rights without any previous issues, and note that questions for the census need to be carefully written and field-tested, which can take years. One former top Census Bureau official noted that the goal of the census since the very beginning was to count the number of people in the country – not just the citizens – and other advocates and census experts see this potential question as one that will lead to fewer responses and ultimately a more inaccurate census.

Finally, funding is a major political issue. The census has typically cost more and more over time as the population increases and as the Census Bureau tries to understand reasons for the undercount and adapts to try to lower the undercount. New technologies also raise costs. Census spending typically happens over the course of a decade – technologies and methods need to be tested and adapted, planning takes place, and spending ramps up toward the end of the decade as it gets closer to the actual census. However, in 2014 Congress mandated that the 2020 Census should not cost more than the 2010 Census and did not adjust for inflation. That forced the Census Bureau to scrap testing of a Spanish-language method and wasn’t able to implement or test programs to better count people in areas that are typically undercounted. The Trump administration also cut the Obama administration’s funding request by 10 percent for 2017 and then, instead of ramping up spending as is typical toward the end of the decade, they kept spending the same for 2018. Small wonder that the Director of the Census Bureau, John Thompson, resigned in June of this year. The Trump administration has yet to nominate a replacement. Even Commerce Secretary Wilbur Ross, a Trump appointee, recognizes the need for more funding – he recently asked Congress for an additional $3 BILLION in funding for the census.

So, the census could potentially end up counting fewer people than there really are, and there are serious questions about whether the Census Bureau has the resources needed to conduct the census properly. That sounds serious – what else should I know?

Despite not nominating a replacement for the Director of the Census Bureau, there are reports that Trump plans to appoint Thomas Brunell for the role of deputy director. Brunell is a registered Republican who has criticized gerrymandering but whose work has been used by Republicans in their efforts to redraw districts most favorable to Republicans. And if you’re wondering why that name sounds familiar, it’s because he was involved in helping North Carolina Republicans try to defend the racially gerrymandered Congressional and legislative redistricting they undertook in 2011. He was paid hundreds of dollars per hour by North Carolina Republicans to research justification for the districts they had already drawn and to testify in court as an expert witness. He argued that the new districts, as drawn, were necessary under the Voting Rights Act. As we now know, 2 congressional districts and 28 state legislative districts were found to be unconstitutionally racially gerrymandered, and a federal court of appeals noted that Brunnell’s conclusions in justifying the North Carolina districts showed a misunderstanding of the Voting Rights Act and lacked evidence to support his conclusions.

Unlike the director role, which requires Congressional approval, the deputy director position does not require Congress to approve the appointee. Even if Trump had nominated a new director, he would still have the right to appoint the deputy director, and that is who has historically overseen the Census, even when there is a director for the Census Bureau. Typically, the deputy director position has been held by a non-political appointee – often a career civil servant with a statistics background. Brunell is a Texas professor of political science with no government experience who has written a book called “Redistricting and Representation: Why Competitive Elections Are Bad For America.” While this is not set in stone, and there is no definitive timetable yet, the appointment could happen at any time.

I see why this is such a big deal. So, ultimately, what should I be watching for?

Trump may have dissolved his commission on voter fraud, but there are still multiple ongoing attempts to disenfranchise voters and make it harder for people to vote. Underfunding the census, the attempt to add a question about citizenship, and the potential appointment of Brunell, a political operative who has a history of defending voting districts found to be unconstitutional, are all attempts to warp the outcomes of the 2020 Census in a way that benefits the Republican party. And the outcome of the 2020 Census will influence changes that could affect how elections are carried out. All North Carolinians should be paying attention to this issue if they value their constitutional right to vote – especially since it’s likely that North Carolina will gain a 14th congressional seat after the 2020 Census. That is, if the 2020 Census is conducted in a way that is open, fair, and in keeping with the constitutional requirements.  

How can I help keep the census open, fair, and accurate?

Contact your representative, Senator Richard Burr, Senator Thom Tillis, and the White House to urge them to keep the census non-partisan and to increase funding for the census.