The Right’s decades-long fight for a Census citizenship question

Supreme Court building, Washington, DC, USA. Photo: Daderot/Wikimedia Commons.

On April 23, the U.S. Supreme Court will begin to consider the Trump administration’s plans to alter the 2020 Census to include a question inquiring about residents’ citizenship status. This significant addition to the decennial population survey has been a tactic the administration has sought since its early days in office in order to maintain the Right’s disproportionate political representation and change a key component of the U.S. Constitution. The contemporary anti-immigrant movement, which has established influence at various levels of the administration, has promoted and attempted to litigate changing the census to reveal citizenship status for nearly 40 years.

The contemporary anti-immigrant movement has promoted and attempted to litigate changing the census to reveal citizenship status for nearly 40 years.

A question regarding citizenship status has not been a regular part of the Census survey since 1950. The short form questionnaire, which a majority of U.S. residents receive, does not include such a question and the Bureau discontinued use of long form questionnaires that did after the national population survey in 2000. However, the Bureau has continued to collect information on citizenship status via the annual American Community Survey (ACS). Seeking to once again include a citizenship question in the broader decennial census isn’t about attaining an accurate accounting of the country’s population–“the addition of a citizenship question is likely to compromise data quality and census accuracy by depressing response rates,” as five former Census directors from bipartisan backgrounds recently claimed in an amicus brief. Rather, adding the question is a deliberate effort further solidify the Right’s antidemocratic capture of government institutions and contribute to the rising threat of authoritarianism in the U.S.

A Census citizenship question would likely divert federal funds from areas with larger immigrant and non-citizen populations as well as rural areas, many of which are already severely under-resourced. This potential new wave of federal divestment would exacerbate existing issues in communities beset by funding inequities in areas such as education, healthcare, and housing, expanding a broader austerity agenda. The Census plays a role in determining apportionment of Congressional districts. A citizenship question on the Census would institutionalize efforts on the Right to more generally limit democratic participation, especially in densely populated urban areas, and make future elections even less representative of the country. Senate Majority Leader Mitch McConnell recently evidenced the Right’s brazenly antidemocratic goals when he derided a modest legislative effort to increase urban voter turnout as “a political power grab.”

These antidemocratic motivations are made even more apparent when considering the role of Kris Kobach, right-wing media figure and informal advisor to the Trump administration, in influencing the administration on the citizenship question issue.

As Kansas’s former Secretary of State and failed 2018 gubernatorial candidate, Kobach has been a leading figure within the contemporary anti-immigrant movement for over a decade. In his former role as counsel at the Immigration Reform Law Institute (IRLI)—the legal arm of flagship anti-immigrant Federation for American Immigration Reform (FAIR)—Kobach assisted in drafting notable anti-immigrant policies including discriminatory housing ordinances in several municipalities as well as Arizona’s notorious SB 1070. These efforts landed Kobach advisory roles in both Mitt Romney and Donald Trump’s presidential campaigns. Kobach is also one of the Right’s most prominent figures advocating voter suppression measures and propagating the false notion that there is rampant voter fraud in U.S. elections.

When the U.S. Department of Commerce, which oversees the Census Bureau, first attempted to add a citizenship status to the 2020 Census, it prompted multiple lawsuits, from advocacy organizations and states. Emails made public during the process of that litigation reveal that Kobach has been a prominent figure encouraging Commerce Secretary Wilbur Ross to include the question. In July 2017, Kobach noted in an email that he and Ross “spoke briefly on the phone about this issue, at the direction of Steve Bannon, a few months earlier.”

In March 2018, Secretary Ross officially announced his intention to include the citizenship question. The anti-immigrant movement, leveraging access to administration officials via Kobach and Steve Bannon, is now closer than ever to achieving a goal it first began pursuing in 1980. FAIR, the oldest and best-resourced organization within the contemporary anti-immigrant movement, was founded in 1979. It would sue the Census Bureau over a citizenship question the following year. “We do have a problem with illegals, and that is what our organization is trying to highlight,” FAIR founder John Tanton said of the lawsuit at the time. “We have to get our house in order, and if we don’t, they will gain political clout, and it will raise h— with efforts to get changes in Congress.”

FAIR’s 1980 lawsuit was dismissed, with federal judges ruling the group lacked legal standing to enact such changes to the Census. FAIR’s follow-up lawsuit regarding the 1990 Census a decade later was similarly dismissed. FAIR sought a different tact for the 2000 Census in hopes of influencing the process internally, rather than via litigation. The anti-immigrant group secured a position on the Census Bureau’s Decennial Census Advisory Committee. “FAIR has a seat on the advisory committee for the 2000 Census, and [FAIR President] Dan Stein has brought this question up on a number of occasions, to no avail,” John Tanton wrote in a 1997 letter to longtime FAIR supporter and syndicated columnist Georgie Anne Geyer. FAIR’s efforts to implement a citizenship question while on the 2000 advisory committee were ultimately unsuccessful.

The anti-immigrant movement minimized their direct advocacy for a citizenship question during the 2010 Census, favoring opposition to multiple federal comprehensive immigration reform proposals and working with Kobach and others to advance anti-immigrant policies at the state level. One federal policy the movement did reliably support in this time was federal legislation to end the practice of birthright citizenship, enacted with the passage of the 14th Amendment. White nationalist Rep. Steve King of Iowa regularly introduces the legislation, known as the Birthright Citizenship Act.

The effort to simultaneously eliminate birthright citizenship and add a citizenship question to the Census amounts to a two-pronged effort to redefine the 14th Amendment.

The effort to simultaneously eliminate birthright citizenship and add a citizenship question to the Census amounts to a two-pronged effort to redefine the 14th Amendment. The amendment’s first section stipulates, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The second section affirms that states’ Congressional apportionment shall be done according “their respective numbers, counting the whole number of persons in each state.” FAIR’s legal arm has filed amicus briefs supporting redefinitions of both sections in the last year. Should either of these efforts by the anti-immigrant movement be successful, it wouldn’t attack just immigrant communities and their families, but a significant component of the U.S. Constitution and resources for the entire country.

With strident allies in the administration and the Right’s increasing seizure of judicial power, the anti-immigrant movement may significantly limit who comprises the “We” in “We the People.” Such a change is the result of a bigoted pursuit for large-scale social and political ostracism they have sought for decades.