In other words, the resulting total national count is distributed incorrectly, affecting the states where the under-count is heaviest. That is, if the national total does not count everyone, and the ones not counted are those who do not return their census forms, then the distribution of the remaining total short-changes the states that actually are home to most of those not counted.
In a decision, the Supreme Court ruled unanimously that this is the kind of inaccuracy that counts under the Enumeration Clause, when a lawsuit is filed claiming a violation of that Clause. California, the largest state, has a population of Like the founders, they are worried about the differing treatment among the states — a potential difference that would result if representation were not based on the census-produced population totals, hopefully as accurate as possible.
Aside from complaining that the under-count, as based upon the lower response rate likely from households occupied by Hispanic citizens and undocumented immigrants, violates the Enumeration Clause, they are also asserting that the effect of including the citizenship question will result in discrimination based on ethnic identity — a form of race bias.
To prove that there was ethnic discrimination, the challengers would have to show that Commerce Secretary Ross sought to inquire about citizenship with the specific purpose of reducing the count of minority residents across the nation, based on ethnicity.
The judge in New York found that the challengers had not offered evidence to prove that convincingly, but the judge in Maryland has tentatively suggested that there probably is such evidence. The Court has set April 23 for a hearing. As of now, that hearing is scheduled for one hour, but the challengers opposing the citizenship question have asked the Court to increase the time.
It is the only case set for the more session that day, so the Justices could allot more time. A final decision is expected before the Court finishes its current term, probably in late June. Because the Census Bureau has said that it must complete the questionnaire by the end of June, or not much later, the Justices are weighing the case on an expedited schedule.
Lyle Denniston has been writing about the Supreme Court since His work has appeared here since mid Toggle navigation. What is some of the early history that the Supreme Court probably will now have to confront? Sign up for our email newsletter. First responders and disaster recovery personnel use census data to help identify where and how much help is needed. Similarly, demographic details from the census assist epidemiologists and public health personnel in everything from tracking disease outbreaks, to combating the opioid epidemic, to improving child health.
Decennial census data provide a population base for dozens of federal surveys. Census Bureau, Census Research, September , www2. Resource Library. Why Is the U. Census So Important? Article Details Date March 15, Paola Scommegna Senior Writer. Focus Areas U. Apportionment State population counts from the decennial census are used to reapportion seats in the U. Money to States and Localities Census totals help determine the amount of funding that state governments and local communities receive from the federal government for the next decade.
Legislation from the th may provide models for future legislation. In the th Congress, several bills were introduced that would have amended the federal census statutes to explicitly address the treatment of unauthorized aliens. The Fairness in Representation Act H. Additionally, the Commerce Secretary would have been required to make adjustments to the data to prevent unauthorized aliens from being counted for apportioning House seats among the states. Specifically, it would have amended the Constitution to read "Representatives shall be apportioned among the several States according to their respective numbers, which shall be determined by counting the number of persons in each State who are citizens of the United States.
While the Constitution permits Congress to conduct the census "in such Manner as they shall by Law direct," 17 the census cannot be done in a way that is constitutionally impermissible. Thus, one question raised by the above legislation is whether it is consistent with the constitutional requirements for the decennial census. It seems clear that Congress could, under its broad constitutional authority to conduct the census, statutorily require the Commerce Secretary to collect information regarding citizenship status.
If so, then it would appear that any exclusion would have to be done by constitutional amendment. On the other hand, if the Constitution requires such individuals to be excluded from the census count, then Congress could not prohibit the Commerce Secretary from asking questions about citizenship and immigration status. As mentioned above, it appears some are concerned that aliens, particularly those individuals in the country unlawfully, are included in the data used to apportion House seats among the states and determine voting districts within the states.
The next section analyzes whether Congress could statutorily exclude aliens from the census count for these purposes or whether any such exclusion would have to be done by constitutional amendment. Constitutional issues could arise if aliens were excluded by statute from the census count for purposes of apportioning House seats among the states. This is because it appears the term "persons" in the original Apportionment Clause and Fourteenth Amendment was intended to have a broad interpretation that is likely expansive enough to include unauthorized aliens.
If true, any proposal to generally exclude unauthorized aliens would have to be in the form of a constitutional amendment. On its face, the term's plain language meaning refers to individuals.
However, it has been held to have a less obvious meaning in certain contexts; that is, to include corporations for the Fourteenth Amendment's due process and equal protection guarantees. It seems that "persons" is not limited to "citizens," as the Framers would have likely used that term instead had it been their intent. It could be argued that certain aliens should not be included in the category of "persons" for purposes of apportionment because of their legal or voting status.
On the other hand, historically, those without the right to vote or with inferior legal status, including women, children, 26 and convicts, have been included. It should also be noted that some states have historically permitted aliens to vote under certain circumstances.
The debates surrounding the original Apportionment Clause and the Fourteenth Amendment appear to add further support for the conclusion that the term "persons" was intended to be broadly interpreted. The Framers adopted without comment or debate the term "persons" in place of the phrase "free citizens and inhabitants" as the basis for the apportionment of the House, 31 thus suggesting the term "persons" includes free citizens and any other individuals who would be considered "inhabitants. Furthermore, while the Constitution expressly grants Congress the authority to grant citizenship, 39 it can be argued there is no indication that Congress was given similar power to grant the status of being a "person.
On the other hand, it could be argued that Congress's broad constitutional authority over the census, apportionment, and immigration permits it to exclude certain aliens, particularly undocumented aliens. The argument could be made that counting aliens as "persons" for apportionment purposes dilutes the voting power of citizens in states without significant numbers of aliens and, therefore, is inconsistent with the Supreme Court's decision in Wesberry v.
Sanders 42 that requires congressional districts be drawn equal in population to the extent practicable i. Some have pointed to the fact that the census has historically included questions about citizenship, thus perhaps suggesting that a distinction has been made between citizens and aliens for purposes of counting individuals. It is true that at least two early censuses and included a category for foreigners not naturalized 49 and later censuses asked about place of birth.
Rather, it is clear that such individuals were included in the total count, 51 and it appears the data were collected for informational purposes similar to how information was collected about age, occupation, etc. It does not appear that aliens have been excluded from any census. The U. Constitution does not require the use of federal decennial census data for intrastate congressional and state legislative redistricting. It only provides for the use of census data for apportionment among the states, not for redistricting and reapportionment within them.
Federal courts have held that states are not required to use federal census data for redistricting, and therefore states can determine what data will be used for redistricting within a state.
Federal courts have considered cases where state legislatures did not use federal decennial census data or even total population data as the basis for redistricting activities.
Depending on the factual circumstances, the courts have upheld or invalidated the use of alternatives to official federal decennial data or total population data. For example, in the decision Kirkpatrick v. Preisler 53 involving Missouri's congressional redistricting plan, the Supreme Court, while invalidating the plan, nevertheless indicated that the use of projected population figures was not per se unconstitutional and that states may properly consider such statistical data if such data would have a high degree of accuracy however, the Court also stated that the federal decennial census data were the best data available.
In Kirkpatrick , the state legislature apparently performed rather haphazard adjustments and projections based on total population and the Court found that the legislature had not justified its methodology.
In Burns v. Richardson , 54 the Supreme Court held that, in state legislative redistricting cases, the Constitution "does not require the states to use total population figures derived from the federal census as the standard" of measurement. The Court noted that in earlier cases it was careful to leave open the question of what population basis was appropriate in redistricting activities, even though in several cases total population figures were in fact the basis for comparison when determining whether the Equal Protection Clause of the Constitution had been violated.
The Court recognized that, in a particular case, total population might not be the appropriate basis for redistricting plans. In the Burns case, Hawaii had used the number of registered voters as the basis for redistricting the state senate.
The Court found that the redistricting plan "satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis. The redistricting plan that would have resulted from a total population basis would not have reflected the true state population distribution as accurately as a state citizen population basis. Since a registered voter population basis was the closest approximation of a state citizen population basis, the use of the registered voter population basis was deemed consistent with the Equal Protection Clause.
However, the Court was careful to note that the ruling in the Burns case did not establish the validity of the unique redistricting population basis for all times or circumstances. Supreme Court has not ruled on the constitutionality or propriety of using total population versus voting population as the basis for intrastate redistricting in a circumstance where the use of total population results in a disparity in voter strength in one district over another, although there is total population equality between the districts.
In Garza v. County of Los Angeles , 57 the U. Court of Appeals for the Ninth Circuit held that redistricting based on voting populations instead of the total population would have been unconstitutional. Total population had been used as the basis of a court-ordered redistricting plan that was disputed by the County of Los Angeles.
Justice Thomas, in his dissent from a denial of a writ of certiorari in Chen v. Courts of Appeals for the Fourth and Fifth Circuits have held that the decision about whether to use total population versus voting population as the basis for redistricting within a state is a choice left to the legislative and political process.
Since, under the Federal Constitution, the states arguably can and should use data other than the official apportionment census data in their own redistricting process if they know the other data to be the best available data, one must look at each state's laws to determine whether the states themselves require the use of official federal decennial census data in the redistricting processes.
Although it appears that generally states prescribe a redistricting procedure by statute for state legislative redistricting, many do not have a statutory procedure for congressional redistricting. The state legislatures in such states conduct the congressional redistricting on an ad hoc basis after a federal decennial census. This means that in such states there may be no explicit statutory requirement to use official federal decennial census data for congressional redistricting, although there may be such an explicit requirement for state legislative redistricting.
To the extent that a state's own laws do not explicitly require the use of official federal decennial census data for intrastate redistricting, the state is free to use any other data. It might be suggested that the federal government release two official sets of data, one for apportionment of the House of Representatives among the states and the other for other purposes.
In such a situation, it could be unclear what a reference in state law to official federal decennial census data would mean. Arguably, the second data set could still be considered official federal decennial census data, even though not used for apportionment purposes. House of Representatives indicates that a majority of the Court considers the references to official federal decennial census data to be a reference to the apportionment data.
At the time of the decision in Department of Commerce v. House of Representatives , there was a flurry of state legislative activity concerning the type of federal decennial census data to be used in intrastate redistricting because of the absence of sufficiently clear and explicit statutory guidelines concerning the appropriate data to be used in intrastate congressional and state legislative redistricting activities.
Although Congress has not explicitly required states to use federal decennial census data in congressional redistricting, it could arguably do so under the same constitutional powers which give Congress the authority to establish other redistricting guidelines if it chooses, Article I, Section 2, clause 1, which provides that the Members of the House of Representatives shall be chosen "by the People" and Article I, Section 4, clause 1, giving Congress the authority to determine the times, places, and manner of holding elections for Members of Congress.
Where it is not clear that one data set is more accurate than the other and the constitutional goal of equal representation is not implicated, arguably, Congress could require that a particular type of data, including citizens only or including aliens, must be used in congressional redistricting. However, it could not do so with regard to the redrawing of state legislative or municipal districts, which remain the prerogative of the states as long as no constitutional voting rights are violated.
The data must be used to apportion the House seats among the states, although there is no constitutional requirement it be used to determine voting districts within the states. The term "whole number of persons" appears broad enough to include all individuals, regardless of citizenship status, and thus would appear to require the entire population be included in the apportionment calculation. As such, a constitutional amendment, such as that found in H.
From time to time, Congress has considered legislation that would exclude all aliens or only unauthorized aliens from being included in the census to apportion the House seats among the states. However, Congress has also consistently not adopted resolutions to amend the Constitution to exclude aliens, with Members citing various reasons, including the reversal of constitutional tradition.
Some proponents of excluding aliens from the apportionment census have asserted that the framers of the Constitution did not understand the term "persons" necessarily to include aliens and point to the first census statute in , which refers to "inhabitants," to support this contention.
Since some of the Members of the first Congress had been Members of the Constitutional Convention a few years earlier, proponents argue that they must have known the intent of the Constitutional Convention in the Census Clause and would not have enacted an unconstitutional census statute.
The proponents further argue that the term "inhabitants" in the first census statute was understood to refer to U. However, there is no direct evidence that this was the intention and, in fact, the early censuses apparently included aliens. The , , and censuses included categories for free white males, free white females, other free persons, and slaves.
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