Stephen Gottlieb: The Census Case

Apr 30, 2019

Too much is happening in this world, but the census deserves discussion because it affects how we  handle everything. New York Solicitor General Barbara Underwood argued in the U.S. Supreme Court that the coming census will undercount the population and do significant damage to the people of New York and elsewhere.

I sued the Census Bureau over the 1970 census and lost. So few people had sued the Bureau, that loss made me an expert. A town in Indiana gave me a first-class plane ticket to help them at trial on the same issue. Who else were they going to get?

In court, on the case I had brought, the federal judge told me I’d have to have an overwhelming case to get relief against the Census Bureau. The Justice Department Attorney in Washington, D.C., responded, under his breath, that indeed I did. I was a bit more humble.

The problem was that we were attempting to predict the effect of the Bureau’s shift from exclusive reliance on an army of census takers knocking on doors to a mailed census form for people to fill in. Although I was suing in Washington, I was working for the St. Louis Legal Aid Society. We were convinced the changes would undercount our clients, so that many of the programs they relied on would be underfunded. As Chief Justice Burger explained in another case, a public education was largely unavailable to many of our clients. Without that, the census form would be difficult to fill in, if they filled it in at all.

The Census Bureau had studied the issue, and without getting into the weeds, I knew the studies they relied on, and the strengths and weaknesses of those studies. By the time they got me to the trial in Indiana, I realized the Indiana team did not have a witness that could deal with the issue.

This time the Bureau is asking people to file their census forms online. And they are asking about citizenship. The citizenship issue runs into the words of the Constitution. Article I, section 2, written in 1787, says the people should be counted “according to their respective Numbers.” It doesn’t refer to citizens or residents. Just Numbers. The reason of course was slavery. Slaves weren’t treated as citizens. But white southerners wanted the value of their votes increased by what the Constitution called “three fifths of all other persons,” i.e., slaves. Slaves had to be counted. So, the language and the original meaning are clear that everybody, citizen and noncitizen alike had to be counted.

In this case, the Bureau opposed adding a citizenship question because it would degrade the accuracy of the population count. Their view was based on a number of studies. But Secretary Ross overruled the Bureau without the benefit of any research and in the teeth of the experts’ views.

Regardless, several conservative judges argued that what the Secretary wanted to do was common sense. Science, statistics, data, who needs it? They treated science as if it just obfuscates reality much like those people who deny the science behind climate change, or the medical science behind vaccinations, or the biology behind changes in species over time. Science is taking a beating, but we will bear the pain. And since the census is about the health of American democracy, self-government will take the licking.

Population trends don’t favor the candidates preferred by five members of the Supreme Court so they’d rather throw the lawsuits out than allow the census to reflect the changes. Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” just dedicated judges. Don’t hold your breath.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

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