Supreme Court

What If a Citizenship Question Doesn't Meaningfully Reduce Census Response Rates After All?

Newly released data suggests Census analysts dramatically over-estimated the extent to which a citizenship question would discourage responses.

|The Volokh Conspiracy |

The Trump Administration's decision to include a citizenship question in the 2020 Census provoked substantial outrage. Many feared that inclusion of the question would depress response rates, leading to an inaccurate Census, and that it would produce a substantial undercount of people in immigrant communities, particularly in households containing noncitizens. Indeed, many suspected that was the whole point.

Fears of a significant undercount, and its consequent effects on political representation and the distribution of federal funds, prompted many states and interest groups to file suit against the Trump Administration. As the Supreme Court explained when it discussed the plaintiffs' claim of standing to bring the suit:

Respondents assert a number of injuries—diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources—all of which turn on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count. Several States with a disproportionate share of noncitizens, for example, anticipate losing a seat in Congress or qualifying for less federal funding if their populations are undercounted. . . .

Several state respondents here have shown that if noncitizen households are undercounted by as little as 2%—lower than the District Court's 5.8% prediction—they will lose out on federal funds that are distributed on the basis of state population. . . .

Justice Breyer's separate opinion also stressed the arbitrariness of including a question that would produce a less accurate enumeration of people within the country.

How can an agency support the decision to add a question to the short form, thereby risking a significant undercount of the population, on the ground that it will improve the accuracy of citizenship data, when in fact the evidence indicates that adding the question will harm the accuracy of citizenship data?

As readers know, the Court decided, 5-4, that inclusion of the citizenship question was unlawful because the Administration's explanation for why the question was to be added seemed "contrived" and did not match the available evidence.

In 2019, the Census nonetheless conducted a significant test of the effects of including a citizenship question, and the results were not what anyone (including the Census's own experts) expected, as documented in a recently released report. As noted by Lyman Stone, the report tells a quite different story about the effects of a citizenship question than that  upon which the Census case was litigated.

Here is what the 2019 Census Test Report (from the Executive Summary):

In 2018, the U.S. Census Bureau decided to test the operational implications of a proposed question on citizenship status on the 2020 Census. In particular, experts and stakeholders raised concerns that such a question could depress self-response rates, increase cost, and reduce the quality of the 2020 population count. An indirect study by Census Bureau researchers predicted that "adding a citizenship question to the 2020 Census would lead to lower self-response rates in households potentially containing noncitizens…" compared to households with all citizens (Brown, Heggeness, Dorinski, Warren, & Yi, 2018). However, the authors recommended the ideal analysis would be to conduct a randomized controlled experiment to compare response rates on questionnaires with and without a citizenship question. . . .

The major finding of the 2019 Census Test was that there was no statistically significant difference in overall self-response rates between treatments. The test questionnaire with the citizenship question had a self-response rate of 51.5 percent; the test questionnaire without the citizenship question had a self-response rate of 52.0 percent. Although these results differ from the predicted rates in Brown's et al. study, the results of the two studies are not
comparable since this study benefits from the randomized controlled design, which isolates the treatment effect.

The Report also found statistically significant declines in response rates among some areas and among subgroups, including areas where more than are 4.9 percent noncitizens or more than 49.5 percent are Hispanic, as well as in the New York and Los Angeles metropolitan areas. This decline, however, was far lower than the Census and other experts had predicted. Whereas Census experts and the Administration's critics had expected a greater-than-five percentage point decline (or more) among particular subgroups, the actual drop as in the neighborhood of one percent. According to the report, these differences are small enough that they would not have required staffing changes for the Census' routine follow-up responses. It's also lower than the point at which plaintiff states claimed they would lose out on federal funding.

While these findings challenge some of the assumptions upon which the legal challenge to inclusion of the citizenship question was based, they don't undermine the Court's ultimate holding, which was based upon the arbitrariness and lack of candor of the Commerce Department (of which the Census is a part), not any particular assumptions about the effect of including the question. They do, however, challenge some of the assumptions that caused so many to file suit against the Census in the first place, and will make it easier for a future administration to include a citizenship question in the decennial Census, if it should so choose.

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  1. We live in a strange world where a country cannot ask its residents if they are citizens of said country or otherwise legally residing within its borders.

    1. They can, just not in the census, the purpose of which is to produce an accurate count of residents, not citizens.

      1. Yes, but by that standard they’d have to ditch 95% of the questions.

        1. If you can demonstrate that any of them reduce response rates, then yes.

          1. They all do to some extent; It’s not like people typically go out of their way to answer intrusive surveys, the Census isn’t adding questions because it increases response rates.

            If all you’re concerned about is response rates, you only ask how many people live in a residence, and stop there.

            1. Do you really think all questions are equally considered intrusive to the extent they’d lower response rates?

              1. Even the least intrusive question is more of an annoyance than its absence.

                1. That’s an interesting dodge. Why do you think you felt the need to make it?

                  1. It’s no dodge. Undoubtedly some questions are more intrusive than others. All questions are intrusive to some extent.

                    I’ve answered as to direction, you want me to speculate as to magnitude.

                    1. What do you think about people who don’t consider magnitude in other contexts?

                    2. I think that we elect people to make judgment calls like this, it’s not an appropriate matter for the courts.

                    3. It’s not only response rates that matter, though I doubt the actual non-citizenship questions are going to have much effect. It’s also whether the additional question causes the non-response rate to vary significantly from group to group or region to region.

                      The same issue arises with respect to the report. Even if the overall average non-response rate is not much affected, the effect can vary, as the report shows. When you are using it determine representation, or allocate funds, that’s important.

                      Variance matters.

              2. I actually doubt that “intrusiveness” is required for a question to reduce response rates to some extent.

                I think it’s human nature to put off a task that requires answering many questions — especially if the “many questions” require thinking or research.

                For example, question number 3 asks:

                3. Is this house, apartment, or mobile home

                Followed by instructions to mark one box and a list of options (“Owned by you or someone in this household with a mortgage
                or loan? …”, “Owned by you or someone in this household free and clear …?”, “Rented?”, “Occupied without payment of rent?”)

                This requires thinking for some people. Suppose someone rents the structure they live in and it’s a condominium where most units are owner occupied. It’s not an “apartment” in common parlance, it’s not a “house” in common parlance, and it’s definitely not a mobile home. This person could now be confused as to if they should/should not answer this question. Yes, most readers here would quickly conclude that the question is to be answered in spite of the poor wording. But some will not quickly do so and therefore set the form aside where it will gather dust and never be filled out.

                Or consider that you’re supposed to count people “living” in the location on April 1, 2020. This may include a casual friend who was “couch surfing” for a few weeks up until April 3 because their lease on their apartment was up but the new house they were having built didn’t yet have its occupancy permit. Now, to answer the question about “Person 2”, you have to contact them because how many people know the birthday and age of a casual friend or how they identify racially – that’s a lot of work and you, at best, will likely delay completing the form (perhaps even if you call them immediately, you get voicemail) resulting in the “delayed is forgotten” phenomena. Of course, you dare not guess because you’re not sure if that would constitute providing misinformation to a federal agent and recall that that is what the Feds send you to prison for when they can’t convict on anything else (such as in the case of Martha Stewart).

                I also suspect there will be response rate differences due to these phenomena across different demographics. For example, less educated people whose eyes glaze over at the simplest 1040 tax filing (single person with one employer and one W-2 and no investment income or itemized deductions…) and pay H&R Block $200 to fill out their 1040 form are more likely to find the Census form confusing and daunting and put it aside if there are too many questions and/or they are somewhat ambiguous.

                1. This is decent satire, but not great. 6/10

          2. “If you can demonstrate that any of them reduce response rates, then yes.”

            But there was never any demonstration of the sort. There was a pure accusation it would, based on no facts, and the study here shows it’s not true at all. So if your basis is that you have to demonstrate it will reduce the responsiveness, there wasn’t even an attempt to comply.

            1. KenveeB, the study shows no such thing. And by its design, it could not accomplish the comparison needed.

              For instance, a household contains 6 residents, two undocumented immigrants and their 4 American-born children. What self-response does the census get concerning the number of folks living there? The answer is 4, every time, and no matter what assurances of confidentiality are offered. Who is the head of the household? The answer is the oldest American-born child, who is 22 years old. How much has that household been under-counted? By 33%. What does the study tell the researchers? Nothing worth knowing.

              More generally, what should we think of folks who say they suppose that asking on a government form, “Who is an undocumented resident?,” will deliver an accurate count of of all residents? We should think they are full of beans.

              1. The Census case was rightly decided, because Roberts was right- the reasons for the question were purely pretextual.

                But this:

                “More generally, what should we think of folks who say they suppose that asking on a government form, “Who is an undocumented resident?,” will deliver an accurate count of of all residents? We should think they are full of beans.”

                Has ZERO place in the law. Judges are not survey takers or puopulation demographers. They are not expected to know what will or won’t decreas the count. You know what can establish that? A trial. With evidence. And one of the reasons you need such evidence is because a lot of stuff people assume to be true turns out not to be true when placed under the light of scrutiny.

          3. Personally, I refuse to answer any survey that asks my race, religion, or ethnicity. Therefore, such questions necessarily reduce the count and are – according to the scientifically illiterate left – unconstitutional.

        2. Wouldn’t that be great for us all? A government that limits itself to doing only what’s appropriate and within its powers would sure be nice.

          1. Is asking these kinds of questions intrusive and outside the powers of the government?

            1. I’m going to guess that a lot of Japanese-Americans from the WWII era found the census intrusive & outside the legitimate powers of the government. I’m also going to guess that a lot of muslim individuals and those of middle-eastern descent after 9/11 found the use that the government made of census data intrusive.

              I wont even mention the hundreds of thousands of households that are burdened monthly with what used to be long form census questions in the Census Bureau’s ongoing rolling survey that supplements the decennial census in the form of the American Community Survey and please don’t ask the so-called ‘dependent’, ‘defective’ and ‘delinquent’ classes referenced in 13 USC 101 what they think of the Census and it’s rolling surveys….

      2. Actually the sole constitutional role of the census to determine the allocation of seats in the House. Seeing as this is based upon legal voters (citizens) and not just the number of people it would seem to me that asking the question to paramount to the actual constitutional purpose.

        1. The constitution says persons, not voters.

        2. Actually the sole constitutional role of the census to determine the allocation of seats in the House. Seeing as this is based upon legal voters (citizens) and not just the number of people it would seem to me that asking the question to paramount to the actual constitutional purpose.

          Seeing as how you don’t understand the law, your conclusion is wrong. Allocation of seats in the House is based on total population, not legal voters. (At no point was it ever voters, as the infamous 3/5ths clause should reveal to you.)

          1. Ouch. Sad indictment of our history/political science/civics classes in public school.

      3. “They can, just not in the census”

        Nope, they can do so in the census as well; they have in the past, and probably will again in the future.

        This will be the one and only time that it could not be done in the census. And the primary reason the pervasive, screeching, hair-on-fire Trump derangement emanating from the left and all of their media outlets. But even that could have been overcome but for the secondary reason: the hurried and slapdash manner of the Trump administration’s actions. You could also go further and explain why many of the administration’s actions are that way, in part it is Trump’s style, but in equal part it is due to the scorched earth opposition.

        1. You could also go further and explain why many of the administration’s actions are that way, in part it is Trump’s style, but in equal part it is due to the scorched earth opposition.

          Oh bullshit. It’s their utter incompetence, and arrogance. Trying to blame Wilbur Ross’s actions on the Democrats is insane.

          1. Democrats slow walked hundreds and hundreds of Trump appointees for years and years, forcing the administration to operate with all of those vacancies.

            So, Democrats have purposely, severely hamstrung the administration’s ability to formulate and implement policy in an effective manner, such as this one. And here we can see, it’s no mystery why they did that. It worked.

            Unless you are going to argue all of those positions are meaningless. Perhaps the federal workforce should be downsized by 80%.

            1. Perhaps the federal workforce should be downsized by 80%.

              Yes.

            2. ML, you are once again proclaiming falsities. The slowdown isn’t on the Senate side.
              Trump hasn’t been sending anyone to the Senate to confirm.

              Get your facts straight, or stop lying.

                1. That’s from Feb 2017, dumbass.

        2. “You could also go further and explain why many of the administration’s actions are that way, in part it is Trump’s style, but in equal part it is due to the scorched earth opposition.”

          I don’t see how the scorched earth opposition has anything to do with what happened here. And I actually do take your point that we live in a hyper-partisan world.

          But still, there’s a way to perform the operations of government. You generate plausible reasons for doing things. You put your cards on the table. You do your rulemaking well in advance. And you put reasons out there that can stand up to scrutiny.

          The Administration didn’t do that, and they lost their case. If a hypothetical 2029 Administration wants to do a citizenship question, and bases it on a proper process where their reasons are not easily exposed as pretextual, I assume they will get to do it. You know, Bush 43 and Obama both managed to get rules enacted that stood up in court despite there being virulent partisan opposition. You just have to respect the process.

          1. “I don’t see how the scorched earth opposition has anything to do with what happened here.”

            See above.

            Curtis Yarvin said that except for the police and military, where power flows top down and orders are obeyed, in the rest of the federal bureaucracy power flows bottom up and the people who really control policy are the permanent bureaucrats. Makes sense to me.

        3. But Trump is EVIL. He must be stopped. He is the Devil. We must mow down all the laws to get him. Only then can our government make us safe from our foolish impulses.

    2. The very idea we cannot ask citizenship in our census is utterly ridiculous.

      1. Even more ridiculous is asking anything more than number of residents, since that is the only constitutionally-authorized point of the census.

        1. Given business use the Census data all the time it seems the Commerce Power would cover many other questions.

          1. How does answering questions cross state lines?

            1. Commerce in one place impacts commerce in another.

              I’m curious, are you really now aware of how much private business relies on Census collected information? Or are you of the type ‘the Founders didn’t care where Olive Garden could profitably locate, so that can’t be allowed or it’s socialism!’?

              1. What does “private business relies on Census collected information” have to do with constitutionality?

                Do you base all your constitutionality decisions on what ends you want?

                1. Not at all! Olive Garden, an interstate enterprise, for example, will make a decision about putting a franchise in a certain location depending on the traffic (much of which is interstate) based upon Census data. You find the collection of that information by a sub-section of the Census to be tyranny?

                  1. I guess you and I have different understanding of “means” and “ends”.

                    1. All the Commerce Clause requires is that the Chamber of Commerce think it necessary and proper. (Amalthea, J., commercing).

      2. Where did you get such a ridiculous idea that the government has the lawful authority to ‘ask’ citizenship in ‘our’ census Commenter_XY? And who is the ‘our’ you’re referring to in your statement?

        I certainly don’t remember being asked if ‘we’ minded any ‘questions’ on the census that weren’t directly related to determining the respective number of individuals in the country for representation and direct taxation purposes as required in Article 1, Section 2 of the United States Constitution.

        Perhaps you could enlighten us as to where the federal government gets the authority to ‘ask’ questions of every person living in the United States that have nothing to do with a Constitutionally-granted authority?

        BTW, the federal government doesn’t ‘ask’ such questions. It demands answers to such questions under penalty of law and threatens those who don’t answer with fines and possible jail time. The government treats the ongoing American Community Survey in the same way it treats the decennial census.

        1. From the N&P clause, of course. Which has been interpreted by the courts to permit measures much more distant from an enumerated power than mere questions.

      3. Maybe we can, but you have to do your homework, and you can’t lie about why you want it on the census.

        1. Sarcastr0….yeah, that part I found irritating. Ross should have been much more upfront and transparent. Yes, the MSM and useless uber-libs would scream, but the case never would have turned out the way that it did.

          1. I honestly wonder when these cases come up, about the extent to which it’s “self” sabotage. Is Trump getting deliberately bad advice here?

            1. Yet another excuse for the Trump Administration’s idiocy.

              The deep state forced Ross to act like an idiot and a liar. OK, Brett.

          2. Some clingers are self-aware enough to know that it has in recent decades become unfashionable to be known as a bigot. Not all of them, but probably most.

            They also know that part of the voter suppression strategy involves refusing to admit any motivation to engage in voter suppression.

            So the bigots hide behind euphemistic labels — traditional values, color-blind, family values, Republican — when others let them hide behind political correctness and disingenuousness.

        2. So true. It’s a tragedy that they didn’t just stand tall and say that it was lawful. They brought it on themselves.

    3. > “they don’t undermine the Court’s ultimate holding, which was based upon the arbitrariness and lack of candor of the Commerce Department (of which the Census is a part)”

      Where is it written that the Executive must prove its case for including this or any question on the census? The court is curbing power they don’t have authority to curb. Claims of “arbitrariness” are themselves arbitrary.

      Nevermind the long history of including some variety of a question about residence and citizenship. Nevermind that non-citizens such as green card holders and visa holders are legally residing in the country and would truthfully answer “no” without penalty. That alone means answering “no” is not evidence of being an unlawful immigrant and should discourage no one from responding.

      1. Where is it written that the Executive must prove its case for including this or any question on the census?

        The Administrative Procedures Act.

  2. “Many feared that inclusion of the question would depress response rates, leading to an inaccurate Census”

    Mostly I suspect they feared that accurate numbers would reveal the problem much larger that we’d been told, which would make not doing something about it politically infeasible.

    The result is not surprising: The idea that legal resident aliens would be afraid of such a question was particularly absurd: They’re already under a legal requirement to keep the USCIS up to date on where they live! Whereas citizens ARE citizens, and have even less to fear.

    Only the illegal aliens themselves would have anything to be afraid of, and they probably have fraudulent ID as US citizens, anyway.

    That’s the real problem with asking the question: The idea that illegal aliens would answer it honestly is pretty hilarious.

    1. I suspect they feared that accurate numbers would reveal the problem much larger that we’d been told, which would make not doing something about it politically infeasible.

      The usual paranoid mind-reading from Brett.

      in your opinion, has anyone ever done anything you disagree with for a good faith reason, or are there always ulterior motives?

      1. It’s as much paranoid mind reading to infer that they actually wanted response rates to drop.

        In this case there are public sources indicating the idea was to create an evidentiary basis for pushing to start redistricting by citizens rather than warm bodies. For which purpose you’d want to maximize the response rate among non-citizens, not minimize it.

        1. There’s plenty of evidence that they wanted response rates to drop.

        2. It’s as much paranoid mind reading to infer that they actually wanted response rates to drop.

          Except for them saying that, yeah, it’s mind reading.

    2. Er, if you assume illegals would answer it dishonestly then it wouldn’t have revealed the problem much larger [sic], right?

      1. Indeed, which is why, while I didn’t think the question outrageous, I also didn’t think it terribly useful.

        1. So you concede there’s no benefit from the question. For someone taking the Enumeration Clause seriously, and other parts of the Constitution seriously that might justify other questions, this would seem to disqualify this question if there are logically concerns it would negatively impact the former command.

          1. I really don’t have any idea how much benefit there would be from asking it. Less benefit than if the answers were guaranteed to be honest, obviously. Zero benefit? I’d find that rather surprising.

            Enough benefit to justify asking the question? That’s the sort of judgment we elect people to make, not assign to judges.

            1. Hmm. The Constitution is clear in its charge to make a full enumeration. Yet you feel like a cost-benefit analysis about costs to enumeration < this question is a 'meh?'

              Sounds like you want a certain outcome…

              1. Sounds like you want a certain outcome…

                Yes, fool. An actual enumeration of every person in the US, citizen and non-citizen alike.

                1. Well, except for Indians not taxed, obviously.

                  Are illegal aliens the modern “Indians not taxed”? It’s a less crazy position than many arguments that prevail before the Supreme court.

                  1. I suppose you could make the argument that Mexicans are really Mestizos, a cross between Castillian Spanish and Indians of yesteryear. Either way, I want them counted, and then deported.

                  2. It’s a less crazy position than many arguments that prevail before the Supreme court.

                    Not possible, since it’s as crazy an argument as possible. Equally crazy arguments may have prevailed, but no crazier ones.

            2. What is the benefit, given that the ACS provides citizenship information?

              And don’t tell me it’s to help VRA enforcement. That’s a laugher.

          2. The Fourteenth Amendment, Section 2, says:

            Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

            Therefore, it is absolutely clear that the United States must count two things to carry out the Constitution:

            1) The number of persons in each state, thus that the members of the House can be apportioned in accordance with that count.

            2) The number of male citizens twenty-one years of age in each state, such that the apportionment can be adjusted if and when necessary.

            So any Census that does not ask about the age, sex, and citizenship status of the persons enumerated is being conducted improperly, and the courts should direct that such questions be asked, so that apportionment can be done properly.

            All other questions, conversely, should be prohibited, insofar as any tendency they have to cause a reduction in response rates will undermine the accuracy of the count, and the Constitution provides no threshold to judge whether a given degree of undercount is “meaningful”. The courts accordingly should direct that such questions not be asked, as they undermine the apportionment.

            1. “So any Census that does not ask about the age, sex, and citizenship status of the persons enumerated is being conducted improperly…”

              Apportionment is a dead letter. Since the 14A, there have been several amendments prohibiting the states from denying the vote on the grounds contemplated in the 14A.

              1. Oh? Point me to the amendment banning, say, property qualifications to limit the right to vote.

                The only actual guard against such in the actual Constitution (as opposed to the fantasies of activist judges) is the loss of representation specified by the 14th Amendment.

                1. I’m not aware of any states that prohibit voting to male inhabitants who are citizens on that basis.

  3. For my money it’s better to leave the question out and risk that there would be no depression in the responses than include it and prove there is.

    1. Yea, but it’s the rest of our money too.

      1. Bigots count, too!

      2. Then have I got some great news for you:

        Not adding the question saves money! Feel better?

        1. What, a few buck on printing costs, or tons in legal fees because of the conniption the left is having about it? I guess the GOP should go back to surrendering all the time then.

          I’ve got a few other things that could be cut as well, now that we’re at it…..

  4. I guess this means the whole issue is moot, because if census response rates are unaffected the Republican party has no longer has any reason why they’d want this question.

    1. This presumes that the Democrats were accurate in accusing Republicans of wanting to suppress response rates. While I suspect the GOP wouldn’t mind some effect in that direction, what they really wanted was hard data to use to justify more extensive efforts at deportation, and to start building a case for ending birthright citizenship.

      While I’ll concede that you can’t just assume that Republicans are honest when they state their motives for doing something, it’s no more sensible to assume that Democrats are accurate when they attribute motives to Republicans.

      1. If that’s what they were interested in, there are much better ways than the census to get that data. (Just like there are much better and cheaper ways to work out how many people live in each state than the census.)

        1. I’d question if that’s really true, given that you’re already doing the census in the first place. That’s why all sorts of non “how many people live here?” questions are piggy backed on the Census; Because it’s efficient to not run a separate inquiry.

          And I’d point out Democratic party motives are just as susceptible to that sort of “if that’s what they really wanted” style of reasoning. Sometimes people choose different ways of doing things than you’d pick if you were in their place, because they simply don’t agree with you about the best way to accomplish something.

        2. I suspect that, more than any other single reason, the citizenship question became a big political prize simply because the leftists were so unhinged in their opposition to it (even though that opposition was based on a reason that was totally unfounded and deranged).

          Such is politics.

      2. This presumes that the Democrats were accurate in accusing Republicans of wanting to suppress response rates. While I suspect the GOP wouldn’t mind some effect in that direction, what they really wanted was hard data to use to justify more extensive efforts at deportation, and to start building a case for ending birthright citizenship.

        The evidence strongly supports the Democrats’ accusation. Does the quote, “would be advantageous to Republicans and non-Hispanic whites.” ring a bell?

        1. Both increased deportation of illegal aliens, and ending birthright citizenship, would be advantageous to Republicans and non-Hispanic whites, wouldn’t they?

          1. Any evidence you’d like to present that that was in the minds of those working to formulate the question? Because evidence exists for Bernard’s position.

          2. Brett, your assumptions about the secret evil of the left’s motives is mirrored by your very high threshold for what evidence shows invidiousness in the right’s motives.

            The right was going for a voter suppression play. It’s in writing. Come on, man.

            1. Part of the voter suppression strategy — in modern America, in which the intolerant no longer wish to be known as bigots — is to deny any and all voter suppression motivation, no matter the circumstances or evidence.

              1. Voter suppression . . . are you guys saying that non-citizens vote?

                1. Contrary to your joke, I have been a voting site manager for a County Clerk where I caught two non-citizens voting. You know the reason why I caught them? Only because they (a couple that came in together) said to poll workers that they thought that they could only vote in Federal elections as non-citizens, so they had questions about the ballot they received that had local elections on them.

                  After a poll worked told me about the conversation (he gave them the ballots too) I pulled their names from the database (they had just registered with valid IDs at that) and I passed it on to the State’s Attorney. It was not much investigative time to determine that they were not-citizens and they were prosecuted for it with a slap on the wrist.

                  How often does it happen? I can’t say. But it DOES happen.

                  1. How dare you suppress the non-citizen vote. Can’t believe the GOP is so evil they are doing this.

                  2. A pity you did not call ICE immediately after the State’s attorney.

                  3. ICE? I assumed they were legal residents at least. I actually pity them, I believe they were genuinely misinformed, as no less than President Obama indicated that they had a right to vote.

                2. Part of the Republican strategy is to intensify our system’s structural amplification of yahoo votes by understating the population in successful, modern, educated communities.

                  Let’s hope Democrats address that problem by arranging an overdue enlargement of the House of Representatives (and Electoral College) soon.

            2. What’s in writing is the expectation of political benefit. Not the route by which it would be achieved.

              Similarly, and with rather less honesty, Democrats oppose efforts to enforce immigration laws and expect illegal immigration to benefit them politically. And yet they do not come out and say, “Bwah ah ha! Our flood of illegal immigrants benefits us in apportionment! That’s why we do it, obviously.”

              No, they claim to be opposing enforcement for humanitarian reasons. Are we going past the publicly stated motivation for both parties, or neither? Or is a double standard you’re pleading for?

              1. You’re seriously claiming the Republicans behaved honestly in this matter?

              2. The route was in writing too. Why do you think Hofeller was talking to the Commerce Department?

                For Pete’s sake, Brett, give it up. It’s staring to sound like “I wasn’t in the delivery room.”

      3. If indeed the census was used to gather information to end birthright citizenship, then government would be acting to challenge directly the People’s sovereignty. The only constitutionally valid way to end birthright citizenship would be to do it by direct sovereign action, without the assistance of government. I do not think it would even be proper to do it using prescribed constitutional means for amending the constitution.

        The People are sovereign. The government is the sovereign’s creation. The government can never properly act against the sovereign. Government has a duty to defend the People’s sovereignty. The notion that government can take action to deprive some of the People of their joint share in the nation’s sovereignty is far-fetched, even outrageous.

  5. “The idea that illegal aliens would answer it honestly is pretty hilarious.”

    Why wouldn’t they? There is no penalty attached to being a non-citizen. If the question were “are you living here legally?” then the question would be thrown out as a violation of the “self incrimination” clause, but it wasn’t.

    1. Your response doesn’t really get a what is going on here.

      First, self-incrimination doesn’t apply, because deportation isn’t a criminal penalty. (Yes, this doctrine is somewhat goofy, but it’s still the stance of the courts.)

      Second, the government knows who is a legal non-citizen. If you’re not on that list, and you identify yourself as a non-citizen, you’ve just admitted to being an illegal alien even if that wasn’t the question asked.

      True, the Census isn’t actually allowed to share individual census answers with law enforcement, but why would an illegal alien rely on that? Nobody whose lifestyle depends on violating the law is going to assume the government follows it.

      Heck, I’m a reasonably law abiding natural born American, and I wouldn’t assume that firewall isn’t breached on a routine basis. Parallel construction is a thing, after all.

      1. It seems like you’re acknowledging the question itself would present a concern for the respondent, but you assume they will lie instead of just not-participating.

        Am I wrong to guess you’re just hoping for the latter?

        1. I’d hope they’d be honest, but then, I’d hope they’d have an attack of conscience and self-deport. I try not to confuse hopes and expectations.

          My expectation is that they would either lie on the Census form or not respond to the Census, because as illegal aliens they’re already routinely lying about their status here, so it would just be a continuation of prior behavior.

          The test survey appears to have found no significant increase in non-response, so I guess most of them just lie.

          1. “or not respond to the Census”

            Do you agree that would be bad, or contrary, to the goals of the Census established in the Constitution? I mean, if you care about the command of an enumeration of persons then you should be worried about something that, as you seem to concede, logically might cause people to not respond.

            1. The Census was established to provide a guide to population for purposes of apportionment. The relevant population has never included every warm body in the country.

              I refer you to the text of the 14th amendment.

              Note that language about “subject to the jurisdiction thereof”, and “excluding Indians not taxed”. At the time, Indians were the only significant population in the US who were not citizens.

              So there’s a fair original intent argument that apportionment is supposed to be on the basis of citizens, and even an argument for birthright citizenship not being given to the children of people present in the country in defiance of our laws.

              Are these prevailing doctrine? No. But they’re not so off the wall that they can’t be pursued in court in good faith.

              1. Brett, there was a notable fraction of population in the U.S. who were not citizens. Potato famine refugees came in large numbers prior to the Civil War, as did European refugees fleeing the political upheavals of 1848. Others as well, of course. Northern New England already had a share of French Canadians.

              2. “So there’s a fair original intent argument that apportionment is supposed to be on the basis of citizens…”

                The use of both “persons” (for apportionment) and “citizens” (for reapportionment) in Section 2 of the 14A really undermines this argument.

              3. So there’s a fair original intent argument that apportionment is supposed to be on the basis of citizens, and even an argument for birthright citizenship not being given to the children of people present in the country in defiance of our laws.

                There’s a horseshit argument, Brett. It makes about as much sense as your claim that illegal immigrants are “Indians not taxed,” despite the fact that they are neither Indians nor untaxed.

                Why do you believe that crap?

      2. > “Second, the government knows who is a legal non-citizen. If you’re not on that list, and you identify yourself as a non-citizen, you’ve just admitted to being an illegal alien even if that wasn’t the question asked.”

        What you’re implying would mean checking EVERY person who answers “yes” against the “list” you mentioned which means at least 300M.

        1. No, most people in the country are citizens, you’d only have to check the people who answered that they weren’t citizens.

  6. Bureaucrats make false estimates to sabotage a policy they disagree with.

    Now, when its to late, they bring out a study that is more in line with reality.

    Too bad John Roberts fell for it.

    1. I do not believe he “fell for it” any more than I believe he really thinks a penalty is a tax.

    2. Roberts didn’t ‘fall’ for what you’re talking about. What he held was that the administration’s rationale was shifting and therefore flimsy.

      1. Well, sort of. What he actually held was that the administration’s rationale was a proven lie.

        But you are correct that he did not hold, as Bob seems to think, that the “suppressing counts” hypothesis made the question improper.

    3. This is some paranoid BS, as usual. I know census statisticians, and they keep their politics away from their data wrangling. Like normal people do.

      Also, as noted in the OP, that wasn’t an important part of the Court’s finding anyhow.

  7. Of course, none of this nonsense addresses the issue that any question beyond “how many people live here?” is unconstitutional.
    Since the legislature “adjusts” the census data before doling out the federal tax dollars to their (geographic) buddies, the actual census numbers are just a fig leaf. They should just admit they are passing out goodies at our expense, and do it in the light of day.

    1. The idea that any question beyond “how many people live here” is unconstitutional is somewhat dubious. That’s the only question that’s constitutionally mandated. But the Census clause doesn’t say that response rates have to be maximized.

      1. Well, yes and no. The census clause states/implies the objective of the census, to achieve an “actual enumeration”, i.e. an accurate count. To my mind, it follows that Congress/the government is welcome to bolt anything they like on top of the census, unless it materially undermines that objective. So yes, response rates do have to be maximised.

        1. Pretty much anything bolted on top is going to reduce response rates at least a little, so you’re effectively conceding that achieving the highest possible response rate isn’t a “though the heavens should fall” priority, it’s just one priority among others.

          Balancing priorities seems to me to be a job for the Executive or Legislature, not the judiciary.

          1. If we prefaced every Census with ‘hi, I’m from the federal government. How many firearms are in this house?’ vs. ‘hi, I’m from the federal government, how many retired persons are in this house?’ would you be equally comfortable with both? Are both of these equally damaging to the enumeration?

            1. What does how comfortable about a question I am have to do with how legal it is?

  8. Professor Adler usually does better than this. This post is a glaring example of scientific illiteracy by lawyers.

    The survey found that the rate of people responding to the initial mailed questionnaire without requiring follow-up didn’t substantially decrease.

    How likely are people at risk for never answering the questionaire at all to answer it at the first go? It doesn’t take a rocket scientist to tell you that the people not needing follow-up up are going to be those least at risk for never answering it.

    Reaching the conclusion Professor Adler did from this survey is a bit like taking a survey of a yacht club restaurant and then concluding hunger and homelessness isn’t a problem in America. If your survey systematically excludes the people with the problem, of course you won’t find it.

    1. It wasn’t his conclusion, it was the conclusion of the Census report, to which he cited and quoted.

      1. No, the census report itself limited and caveated the purpose and use of the survey. Members of the administration, and Professor Adler with them, are extrapolating the survey results beyond the report to answer a question it said it wasn’t designed to answer.

        1. He’s not extrapolating anything. He give a background, cites the report’s own findings, then says that it shouldn’t have changed the court’s holding, but perhaps just it’s underlying assumptions.

          If Trump administration officials are saying something else or going further, fine, but then I don’t think you can show that Adler is doing that here.

          1. Yeah, I’m with m_k here. This seems well vetted.

    2. You seem to be complaining of the survey in general. It requires follow up already. They’re just saying even in hispanic areas, it depressed response 1%, well below the 5% claimed. This was not enough to even require more field agents, who do the follow up.

    3. Yes.

      This is critical. There was no follow-up for non-responders (NRFU). The point of the study was to determine NRFU staffing needs for NRFU in 2020. As the report says(p. 12):

      The self-response rates
      discussed in this analysis do not try to mimic the final overall self-response of a census,
      which includes self-response received during NRFU and other field operations.

      It is also worth noting the significant non-response rates in areas with larger non-citizen populations, as well as in the regions covered by the NYC and LA offices. That suggests that even if the overall difference is not statistically significant, there may easily be, significant non-response rates in some places, which would distort the allocation of Congressional representation – just as was alleged. Cross-tabulations would be useful here.

  9. Just pointing out – the court should not base on “facts” or findings of facts that in reality are only hypotheticals.

    1. Yet Breyer’s faith in the bureaucrat’s ability to predict the future remains intact.

  10. It is amazing that courts make decisions on the basis of untested social theories stating that this or that will result in unequal or descriminatory results. In this case, had the government not been so incompetent, the court would have probably decided this case on an untested claim by experts whose prestige is advanced by making such claims.

  11. “What If a Citizenship Question Doesn’t Meaningfully Reduce Census Response Rates After All?”

    The question is not so much “what if” as “so what?”

    The constitutional mandate for the census is to count noses — nothing more and nothing else.

  12. “Several States with a disproportionate share of noncitizens, for example, anticipate losing a seat in Congress”

    So wait, States are afraid to lose seats in congress that they shouldn’t have in the first place?

    1. They are fully entitled to those seats.

      The Constitution plainly states that representation is to be based is to be based on population, not number of citizens.

  13. I saw video of President Trump telling Americans, as a matter of fact, that census takers come to your door and ask you how many toilets you have. Is this true?

    1. 2000 Census long form.

      Question 13 asks whether you’re a citizen.

      Question 39 asks about toilets. 😉

    2. The presence of indoor plumbing is a proxy for development status in lots of academic literature, and I wouldn’t be surprised if the # of toilets was also used as a measure of affluence.

  14. Ah yes … “conservatives” … ask them about the second admendment and they will go on for hours that the “plain” meaning of the amendment guarantees everyone a machine gun. But ask them about the census and they will go on for hours about the meaning of the word “Enumeration” means.

    1. So, you’re complaining that in both cases we care about what the constitutional text means?

      1. You don’t care about enumeration. Youu are willing to sacrifice accuracy for your political goals.

          1. He stated them. Getting rid of birthright citizenship.

            1. Getting rid of birthright citizenship would be one best political goals I can think of. The current policy is purely insane, as Harry Reid explained.

              1. M L, it may be a political goal, but it can’t be a government goal. For any agency of government to take action to void birthright citizenship would set the government against citizens who enjoy a share in the nation’s sovereignty. The government has no power to act against the sovereign.

                Even to do it by constitutional amendment would require restricting the ban to future birthright citizens. Existing birthright citizens could not be touched. Government, without an amendment, cannot change anything regarding citizenship, except insofar as it follows the constitution on naturalization.

                1. I disagree on the 14th amendment, the Congressional record makes it clear that they considered “subjection to the jurisdiction thereof” more than mere physical presence. It didn’t apply to sojourners or “foreigners” but would apply to those who lawfully and permanently domiciled.

                  1. the Congressional record makes it clear that they considered “subjection to the jurisdiction thereof” more than mere physical presence.

                    No it doesn’t.

                    1. Actually, it does. Have you read it? By the way — actually everyone with a clue will agree with my particular statement that you quoted, as far as it goes — it’s not even controversial.

                    2. The exceptions were diplomats.

                  2. You’ve gotten repeatedly owned on this premise of yours by DMN and by NToJ.
                    And yet you don’t learn. As though you are more ideologue than rational actor…

                    1. Have you read it Sarcastro? Sorry but you don’t know what you’re talking about, and you’re far from competent to render a judgment on anyone being “owned.”

    2. “”conservatives ” ..ask them about the second admendment and they will go on for hours that the “plain” meaning of the amendment guarantees everyone a machine gun.”

      virtually no one makes that claim – except the anti-2A activists –

  15. “The major finding of the 2019 Census Test was that there was no statistically significant difference in overall self-response rates between treatments. ”

    Gee, whoda thunk it.

    Anyone with an iota of common sense knew that this response rate conjecture was a bunch of nonsense all along.

    1. Did you read the report, or were you too busy saluting the Confederate flag?

      1. Maybe I should have a Confederate flag memorabilia of some sort. It stands for independence, self-government, and secession. That’s the real reason it gets attacked so much by the statists.

        https://www.youtube.com/watch?v=QxIWDmmqZzY

        1. Confederate memorabilia would suit you.

          Until replacement.

        2. Independence and self-government? Really?? You mean the slaves could vote?

          News to me.

          1. It is true, and unfortunate that the immoral institution of slavery, which was on the outs anyway, was part of the economic, monied interests behind secession. It wasn’t the reason for war, though, since Abraham Lincoln was happy to offer the Corwin Amendment to enshrine slavery in the Constitution if the Union could be kept, but the confederates rejected this because they wanted independence more than slavery, and thus neither the north nor the south was fighting over slavery.

            Thus the enduring legacy of those events can be found in today’s affairs right here:

            https://www.bloomberg.com/news/articles/2019-06-03/china-invokes-abraham-lincoln-in-justifying-push-to-take-taiwan

            1. This is patent bullshit.

              “…since Abraham Lincoln was happy to offer the Corwin Amendment…”

              Abraham Lincoln didn’t “offer” the Corwin Amendment. Democratic President Buchanan did. It was voted on by the House and Senate before Lincoln’s inauguration. Lincoln later sent the signed version from Buchanan to the southern states, but he didn’t propose it.

              “…to enshrine slavery in the Constitution if the Union could be kept…”

              Which is not what the Corwin Amendment does. It says the federal government won’t interfere with the existing southern states’ slavery. That’s different from enshrining forever slavery. Which it can’t, as no amendment can. The Corwin Amendment could be amended, too.

              “…but the confederates rejected this because…”

              They had already seceded, and didn’t trust the northern states to uphold the bargain. They did not want to submit their right to own slaves to future negotiations. They also (improvidently) viewed the Corwin Amendment’s supermajority passage as evidence that the US lacked the testicular fortitude to go to war to preserve the Union. They were tragically wrong. And but for the victor’s unimaginable grace, that bad bet should have cost the confederate traitors their lives.

              Which is all to say that they were fighting over secession, and the southern states seceded to preserve slavery. Which is what you insist, isn’t the case.

            2. Slavery was “on the outs.” That’s ridiculous. Even after the war the planters did all they could – which was quite a lot, thanks to Andrew Johnson – to keep the substance of slavery intact.

              Cotton was crucial to the southern economy, and they need lots of labor, organized and disciplined, to grow it. They weren’t about to just let it go.

              Stop the neo-Confederate myth-making, M.L. It makes you look like a fool.

              1. not “on the outs.”

                Preview???? Edit????

  16. Don’t worry guys. The Census will still query everyone all their sexual proclivities. Our govt needs to know what you do in the bedroom.

    1. It would be funny if they asked pronouns. Everyone would be upset.

  17. My household received notice from the US Census and responded online about 7 months ago.

    The citizenship question was there, I took a screenshot:
    https://i.imgur.com/lZszc4F.png

    1. I am reasonably certain the survey you received was the American Community Survey, not the Census.

      1. The American Community Survey supplements the Decennial Census via a rolling survey targeting about 250,000 households a month using questions that used to appear on the Census long form.

        1. Yes, and it is not the census.

    2. The draft Census questionnaire is here.

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