Census Manipulation: Blocked Citizenship Question and Excluded Undocumented Immigrants from Apportionment
Tier 1Resolved2018-03-01 to 2021-01-20
Factual Summary
The Trump administration pursued two distinct but related efforts to alter the composition of the decennial census in ways that critics argued would reduce the political representation of immigrant communities and benefit the Republican Party. Both efforts were blocked by courts. The citizenship question effort was blocked by the Supreme Court in 2019. The apportionment exclusion memo was blocked by a federal court and effectively mooted by the end of the administration.
**Background: The Census and Congressional Apportionment**
The Constitution requires a census of the "whole number of persons" in each state every ten years. Census data is used to apportion seats in the House of Representatives among the states. Every person residing in the United States, regardless of immigration status, has historically been counted. A citizenship question has not appeared on the standard decennial census form since 1950, though it has appeared on a long-form questionnaire administered to a sample of households. The census is conducted by the Census Bureau within the Department of Commerce.
**The Citizenship Question Effort**
On March 26, 2018, Commerce Secretary Wilbur Ross announced that the 2020 decennial census form would include a question asking whether each household member was a U.S. citizen. Ross stated the question was being added at the request of the Department of Justice to assist with enforcement of the Voting Rights Act, which requires data on citizen voting-age population. Democratic state attorneys general and civil rights organizations immediately challenged the decision, arguing it would cause significant undercounting of immigrant communities who would fear that their responses could be used against them by immigration enforcement authorities.
Internal documents obtained through litigation revealed a more complex picture. Commerce Department records showed that Ross had been interested in adding a citizenship question before any DOJ request was made, and that the DOJ request had been solicited by Commerce to provide legal cover. A hard drive belonging to a deceased Republican strategist, Thomas Hofeller, was discovered by his daughter and turned over to plaintiffs in the litigation. Hofeller's files revealed that he had conducted a study concluding that a citizenship question would be "advantageous to Republicans and Non-Hispanic Whites" and had drafted the language of the DOJ request that was ultimately used to justify adding the question.
In Department of Commerce v. New York, decided June 27, 2019, the Supreme Court blocked the addition of the citizenship question by a 5-to-4 vote. Chief Justice Roberts, writing for the majority and joined by the four liberal justices on this portion of the opinion, held that the administration's stated rationale for adding the question, which was Voting Rights Act enforcement, was "contrived" and not the genuine reason for the decision. Roberts found that administrative agencies must offer honest explanations for their decisions and that the courts could look behind a pretextual justification. The government did not produce an alternative rationale in time to meet census printing deadlines, and the 2020 census proceeded without the citizenship question.
**The Apportionment Exclusion Memorandum**
On July 21, 2020, Trump signed a presidential memorandum directing that undocumented immigrants be excluded from the population count used to apportion House seats among the states. The memo stated: "It is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status." If implemented, the policy would have reduced the number of House seats allocated to states with large undocumented immigrant populations, particularly California, Texas, and New York.
In Trump v. New York, decided December 18, 2020, the Supreme Court unanimously held that the plaintiffs' challenge was premature because the administration had not yet determined how many people would be excluded or which states would be affected, making the injury too speculative to support standing. The Court did not rule on the constitutional merits. However, lower courts had previously ruled against the administration on the merits. A three-judge panel of the Southern District of New York held in September 2020 that the memo violated both the Constitution's requirement to count "the whole number of persons" and the Census Act. The Supreme Court's ruling on standing meant the question was not resolved on its merits before Trump left office. Biden's administration subsequently withdrew the policy.
**The Census Has Not Included a Citizenship Question Since 1950**
The American Community Survey, a continuous survey administered to a sample of households, does ask about citizenship status. The full decennial census, which is the instrument used for apportionment, has not included such a question since 1950. The shift away from a full-form citizenship question reflected findings that such questions significantly depress response rates in immigrant communities, reducing the accuracy of the count and threatening the constitutional foundation of representation.
Primary Sources
1. Department of Commerce v. New York, 588 U.S. 752 (2019), Chief Justice Roberts majority opinion: https://www.supremecourt.gov/opinions/18pdf/18-966_boft.pdf
2. Trump v. New York, 592 U.S. 125 (2020), Supreme Court per curiam opinion: https://www.supremecourt.gov/opinions/20pdf/20-366_g3bh.pdf
3. Presidential Memorandum on Apportionment, July 21, 2020: https://www.federalregister.gov/documents/2020/07/24/2020-16423/excluding-illegal-aliens-from-the-apportionment-base-following-the-2020-census
4. Thomas Hofeller files analysis, filed as exhibits in litigation, New York v. United States Department of Commerce: https://www.courtlistener.com/docket/6185792/new-york-v-united-states-department-of-commerce/
5. Southern District of New York three-judge panel ruling on apportionment memo, September 10, 2020: https://www.aclu.org/cases/trump-v-new-york
Corroborating Sources
1. NPR: "Chief Justice Roberts Rejects Trump Administration's Rationale For Adding Citizenship Question," June 27, 2019: https://www.npr.org/2019/06/27/736489139/supreme-court-blocks-census-citizenship-question
2. New York Times: "Deceased G.O.P. Strategist's Hard Drives Reveal New Details on the Census Citizenship Question," May 30, 2019: https://www.nytimes.com/2019/05/30/us/politics/census-citizenship-question-hofeller.html
3. Washington Post: "Trump signs memo to exclude undocumented immigrants from census count used to apportion House seats," July 21, 2020: https://www.washingtonpost.com/politics/trump-signs-memo-to-exclude-undocumented-immigrants-from-census-count-used-for-apportionment/2020/07/21/
4. Brennan Center for Justice: "The Citizenship Question Would Cause a Severe Undercount of Noncitizens and Hispanics," 2019: https://www.brennancenter.org/our-work/research-reports/citizenship-question-would-cause-severe-undercount
5. American Civil Liberties Union, case materials, New York v. Department of Commerce: https://www.aclu.org/cases/new-york-v-department-commerce-census-citizenship-question-case
Counterarguments and Context
The administration argued that the citizenship question was a lawful policy choice within the Commerce Secretary's discretion and that citizenship data was genuinely needed for Voting Rights Act enforcement, regardless of the litigation-discovered sequence of communications. Administration officials pointed out that many peer democracies include citizenship questions on their censuses and that the Census Bureau's own estimates of response-rate suppression were uncertain. On the apportionment memo, the administration argued that the Constitution's use of "whole number of persons" was ambiguous and that Congress had historically defined the scope of the apportionment base, citing statutes that excluded untaxed Native Americans from historical counts as precedent for executive discretion. Critics argued these historical exclusions were themselves constitutional violations rather than authoritative precedent. The Supreme Court's unanimous decision to avoid the merits in Trump v. New York meant the constitutional question about whether undocumented immigrants may be excluded from apportionment remains formally unresolved, though the scholarly consensus strongly favors the view that they may not.
Author's Note
This entry is classified as Tier 1 because the Supreme Court issued a final ruling on the merits of the citizenship question dispute, with Chief Justice Roberts explicitly finding that the stated rationale was "contrived." That finding is a judicial determination that the administration provided a false reason for its policy. The apportionment memo was resolved through mootness and withdrawal rather than on the merits, which is noted. Both episodes represent documented attempts to use the census mechanism to alter political representation for partisan advantage, with the citizenship question attempt producing a Supreme Court finding that the official rationale was pretextual.