Cruz crows credit for census citizenship count that could cost Texas clout

Sen. Ted Cruz in New Braunfels on Feb. 20, 2018.

Good morning Austin:

Here is the top of the New York Times  story on reaction yesterday to Monday’s announcement by the Trump administration that it plans to add a question to the 2020 census, last seen in 1950, asking respondents if they are citizens.

At Least Twelve States to Sue Trump Administration Over Census Citizenship Question
By MICHAEL WINES and EMILY BAUMGAERTNER

WASHINGTON — At least 12 states signaled Tuesday that they would sue to block the Trump administration from adding a question about citizenship to the 2020 census, arguing that the change would cause fewer Americans to be counted and violate the Constitution.

The New York State attorney general, Eric T. Schneiderman, said he was leading a multistate lawsuit to stop the move, and officials in Connecticut, Delaware, Illinois, Massachusetts, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island and Washington said they would join the effort. The State of California filed a separate lawsuit late Monday night.

“The census is supposed to count everyone,” said Attorney General Maura Healey of Massachusetts. “This is a blatant and illegal attempt by the Trump administration to undermine that goal, which will result in an undercount of the population and threaten federal funding for our state and cities.”

The Constitution requires that every resident of the United States be counted in a decennial census, whether or not they are citizens. The results are used not just to redraw political boundaries from school boards to House seats, but to allocate hundreds of billions of dollars in federal grants and subsidies to where they are needed most. Census data provide the baseline for planning decisions made by corporations and governments alike.

Opponents of the added citizenship question said it was certain to depress response to the census from noncitizens and even legal immigrants. Critics accused the administration of adding the question to reduce the population count in the predominantly Democratic areas where more immigrants reside, in advance of state and national redistricting in 2021.

The Trump administration defended the citizenship question by saying it was needed to better enforce the Voting Rights Act, which relies on accurate estimates of voting-eligible populations.

You will notice that Texas – which has the largest immigrant population and the largest non-citizen population of any state aside from California – was not among the states suing the federal government to keep that from happening.

And Sen. Ted Cruz not only praised the decision, he took some credit for it.

From a press release yesterday from Cruz’s office:

Cruz, Cotton, and Inhofe Applaud Addition of Citizenship Question to Census

WASHINGTON, D.C. – Yesterday, the Commerce Department announced that it would add a new question to the 2020 census asking respondents whether they were citizens of the United States. The news comes after U.S. Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.), and Jim Inhofe (R-Okla.) sent a letter to the Department asking it to add such a question and gather more accurate data on the number of U.S. citizens living in the country.

“I applaud Secretary Ross for honoring this request by my colleagues and me,” Sen. Cruz said. “It is imperative that the data gathered in the census is reliable, given the wide ranging impacts it will have on U.S. policy. A question on citizenship is a reasonable, commonsense addition to the census.”

“Counting the number of U.S. citizens in the country should be a high priority of the census, and the only way to get an accurate count is to add a question about citizenship to the census itself,” said Senator Cotton.

“Accurate census data that reflects the total number of U.S. citizens is a vital part of our democracy.” Inhofe said. “Without it, we can’t responsibly ensure equal representation for states in the House of Representatives or assess voter participation. I applaud the Census Bureau for adding this common-sense question.”

Unsurprisingly, U.S. Rep. Beto O’Rourke, D-El Paso, Cruz’s re-election rival, took a different view:

Adding a Census question on citizenship is specifically intended to undercount communities with large immigrant populations. For El Paso, for Houston, for every community across our defining border state, that means a loss of millions in resources for health care, public education, infrastructure and transportation, disaster relief and preparedness, and the distribution of billions in federal funds critical to projects in Texas. Beyond these decade-long impacts on Texas families, it will also work in tandem with gerrymandering to erode the voting rights of those in our state and threaten our representation in the Federal government.”

According to a January 2016 report by the Pew Research Center – Mapping the Latino Electorate by State – California and Texas far and away lead the way, and in each case, Latinos represent 38.6 percent of the total population, but only 28 percent of the eligible voter population.

This is a function of large numbers of Latino immigrants who are not citizens, and the large population of younger Latinos who are citizens but are not yet of voting age.

And, it is worth noting, the Texas congressional district with the largest Latino eligible voter population and largest share Latino among eligible voters is O’Rourke’s 16th Congressional District, where Latinos represent 83.6 percent of the total population, and 61.9 percent of the share Latino among eligible voters. In O’Rourke’s district, 56.7 percent of Latinos are eligible to vote.

One consequence of this disconnect between total population and eligible voting population is that members of Congress from districts with large numbers of non-citizens are generally elected with fewer votes.

So, for example, in 2000, I wrote a story from the Democratic National Convention in Los Angeles:

LOS ANGELES – The 2000 Democratic National Convention here is being held in the 33rd Congressional District. It is the poorest, most Hispanic district in all of California. Democrats win in the 33rd without breaking a sweat.

And yet these densely packed precincts of L.A. and the teeming small cities to its southeast offer a troubling puzzle to the Democrats, and to democracy itself. When Bill Clinton and Al Gore swept the 33rd in 1992, they also collected fewer voters here than in any other district in California.

That seeming contradiction is possible because the 33rd also owns the distinction of having the fewest registered voters of any California district, and not entirely because the locals are not organized or interested. It is, rather, because so many of those living here are not citizens at all, but immigrants not yet eligible to vote.

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The congresswoman in California’s 33rd District is Lucille Roybal-Allard, whose father, Edward Roybal, a pioneer in Latino politics in Los Angeles, served in Congress for 30 years. Roybal-Allard won with 87 percent of the vote last time, but that was with only 43,310 votes. Across town, on L.A.’s Westside, U.S. Rep. Henry Waxman received three times as many votes on his way to a slightly less impressive percentage of the vote.

What that means is that Roybal-Allard ultimately must answer to a much smaller group of people than Waxman, and that the few who vote in her district wield power in ways that undermine the meaning of one man, one vote.

Conversely, states like California and Texas gain political muscle in Washington because of the strength of population numbers that include people who aren’t citizens and can’t vote.

Now, one could argue that Cruz here is placing political principle above the economic and political self-interest of Texas, and that would be a brave stand.

But, it is also a politically appealing stance for Cruz to his core Republican constituency.

As he puts it in the press release: A question on citizenship is a reasonable, commonsense addition to the census.

In other words, only nettlesome political correctness and a cowering unwillingness to ask someone living in the United States if he or she is a citizen makes what should be the very straightforward collecting of useful information into a problem.

But, having said that, one would also presume that as a senator from the second largest state, Cruz would contemplate the real-world impact of adding that question to the census, an impact that would play out very differently for Inhofe’s home state of Oklahoma or Cotton’s home state of Arkansas with relatively small non-citizen populations.

Below is from a spreadsheet provided me last night by demographer William Frey of the Brookings institution in Washington.

And here, from Pew, is a similar accounting of the “unauthorized immigrant population by state,” as of their last estimate in 2014

Most of the reaction yesterday focused on the economic impact to states and communities if, asking a citizenship question depresses the census response rate among non-citizens and their families – which often include a mix of citizens and non-citizens, legal and not legal.

An undercount when applied to formulas for federal aid and other resources could have a substantial impact.

“What we are doing here is requiring everyone to say whether or not they are a citizen and that sounds on the surface to a lot of people like a very logical thing,” Steve Murdock, the former Texas state demographer who served as director of the Census Bureau from 2007 to 2009, told me yesterday.

“My concern with this is for state like Texas, where we have a fairly significant number of people who are in undocumented status, is if they fail to get involved with the census because of this provision, states like Texas, states like California are going to find themselves with difficulty in covering the costs of services for a group of people who are not citizens but who are contributing to the economy and are essential to some parts of our economy,” said Murdock, who is now at Rice University.

An undercount could also affect the national reapportionment of congressional seats following the 2020 census.

In terms of political impact, Frey yesterday did a quick simulation and found that if 15 percent of non-citizens didn’t reply to the census because of the new question, California and New York would each lose a seat in the congressional reapportionment based on the 2020 Census, and Colorado and Montana would each gain a seat. Texas, which is now looking like it would gain three seats, would probably not be affected, according to Frey’s preliminary calculation.

But politically, this understates the potential impact because the addition of the citizenship question appears to be the prelude to an effort to change the way that state legislative districts and even congressional district seats are drawn by only counting the citizen population to draw districts and not the total population.

For Texas Republicans, drawing in-state legislative seats based on citizen population is all to the good. But if the same principle is applied to apportioning congressional districts nationally, it could potentially cost the state a couple of seats, and with it a couple of electoral votes. At present, Texas appears on track to gain three new congressional seats after the 2020 Census, but, a citizen-only count would reduce that number.

And that would be a high price to pay for principle.

This issue is somewhat familiar to me because in 2009 I was a Washington correspondent for the New Orleans Times-Picayune when Sen. David Vitter, R-Louisiana, sought to add a question to the 2010 Census that would ask respondents both their citizenship and immigration status.

At the time, Queens College sociologist Andrew Beveridge estimated the impact of three different methods of counting population for reapportionment, with Texas getting two less seats if the count was limited to citizens instead of total population. (Note that Texas actually picked up four new seats as a result of the 2010 census, not the three Beveridge projected, bringing its total to 36, not 35.)

Like Cruz, Vitter was a staunch conservative and an immigration hard-liner. But, unlike Cruz, Vitter represented a state that would retain clout, not lose it, by only counting citizens for purposes of reapportionment.

(A quick aside for purposes of historical context. As I recounted in a recent First Reading – Recalling the effort to draft Stormy Daniels to run for U.S. Senate in Louisiana  2009 was the year that Stormy Daniels, three years after she now says she had sex with Donald Trump, apparently whetting her political appetite, undertook a listening tour of Louisiana as she contemplated challenging Vitter for re-election. I do not recall if Daniels took a position on putting a citizenship question on the census.)

From my Oct. 13, 2009 story in the Times-Picayune:

Vitter portrays his amendment as a last-ditch effort to protect the political power of Louisiana and other states with relatively small populations of people who are either not citizens or are not legal residents in the United States, and keep Louisiana from losing one of its seven congressional districts in the coming reapportionment.

The decennial census, required by the Constitution to count all “persons,” is used for the purposes of congressional apportionment and legislative redistricting. The result is that places with more people — regardless of their status — get more representation.

Or as Vitter put it in floor debate on his amendment last week, “States that have large populations of illegals would be rewarded for that. Other states, including my home state of Louisiana, would be penalized.”

Vitter said that in addition to Louisiana, the states of Indiana, Iowa, Michigan, Mississippi, North Carolina, Oregon, Pennsylvania and South Carolina “would lose out.” He challenged the senators from those states, “if you vote against this amendment, then you are voting against the interests of your state.”

By far the biggest winner under the existing system is California, followed by Texas, New York and Florida.

But opponents of the measure described it as ill-advised, and in its intent, both unconstitutional and discriminatory.

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A statement released this week by six former census directors also noted that the bureau also would have to scrap its $400 million outreach and promotional campaign built on the simplicity of the census short form’s 10 questions, a campaign that in many cases also explicitly promises that the form does not ask about immigration status.

Adding this new question now, they wrote, “would put the accuracy of the enumeration in all communities at risk.”

The fear is that households in which some folks are not legal will avoid enumerators, who then also will miss the legal people, including American-born children, living in the same household.

But perhaps, said Arturo Vargas, executive director of the National Association of Latino Elected and Appointed Officials, that is the point.

“It’s intended to suppress the count of Latinos, ” said Vargas, a member of the Census Advisory Committee who was in New Orleans Tuesday to talk to foundation representatives about the census.

Under the amendment, the census still would be obliged to count everyone, but the additional information about citizenship and legal status then could be used to adjust the number that is used for the purpose of apportionment and redistricting, a move that would inevitably wind up before the Supreme Court for constitutional adjudication.

Steven Camarota, director of research at the Center for Immigration Studies, said that as a practical matter, the Vitter-Bennett amendment comes too late, but that “Vitter’s concern is legitimate” and Louisianians are “right to worry” about a loss of power the way the current count is applied to reapportionment.

Camarota noted that, according to 2009 Current Population Survey, there are about 21.3 million noncitizens among the nation’s 305 million people. About half that 21.3 million are living here legally and about half are not. But, because those populations tend to be more concentrated in certain states, those states gain political power in ways that, he said, raise legitimate questions about democratic representation. In a study a few years ago, Camarota found that while in some states it took 100,000 votes to get elected to Congress, in a couple of districts in California, there were so few citizens that a candidate could get elected with 35,000 votes.

“We’re losing a member of Congress because of this, ” said Elliott Stonecipher, a pollster and demographic analyst from Shreveport, who has written extensively on the subject. While Stonecipher supports adding the citizenship question to the short form, he does not think it is a good idea to ask about legal status, which he feared would “suppress response.”

Roy Beck, executive director of Numbers USA, which supports lower immigration levels, said the group supports Vitter-Bennett because its members think that the power that accrues to communities whose population is inflated by those who are not in the country legally, “leads local and state officials to protect their illegal populations.”

Two days later, I wrote:

Sen. David Vitter, R-La., agreed Wednesday to modify his amendment requiring the 2010 census to ask all people their citizenship, even as he pleaded with colleagues to let him have an up-or-down vote on the issue.

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Responding to the concerns of Elliott Stonecipher, a Shreveport pollster and demographic analyst who has championed the cause of adding the citizenship question to the census, Vitter agreed to drop language that would require the census short form to ask every person about their immigration status.

Stonecipher had said that a question probing into a person’s legal status might have the effect of scaring some respondents off. “I appreciate very much the senator’s choice to ask the citizenship question alone, ” Stonecipher said after Vitter made the adjustment.

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Vitter wants the citizenship question to be on the census so he can press an effort to exclude noncitizens from reapportionment and redistricting counts, an effort that would change past practice and would almost certainly land before the Supreme Court if it managed to pass Congress and gain the president’s signature.

The practice of counting noncitizens in apportionment and redistricting may be time-honored, but Vitter said on the Senate floor Wednesday it is “crazy.” “It doesn’t pass the smell test, and it doesn’t meet the common sense test of the American people, ” he said.

“I don’t believe noncitizens should be counted in congressional reapportionment, ” Vitter said. “I don’t think states which have particularly large noncitizen populations should have more say and more clout in Congress, and that states like Louisiana that don’t should be penalized.”

Vitter’s effort ultimately failed in what was then a Democratic-controlled Senate.

From my Nov. 5, 2009 story:

Sen. David Vitter’s bid to require the 2010 Census to ask all respondents about their citizenship was killed today when the Senate voted to invoke cloture and end debate on the Commerce spending bill without having to consider the Louisiana Republican’s amendment.

The Democratic leadership, which had been trying to block the Vitter amendment since early October, eked out a victory with the bare number of votes needed to invoke cloture, prevailing 60 to 39.

Nonetheless, Vitter’s effort proved popular in Louisiana, though his Democratic colleague Sen. Mary Landrieu, while agreeing with him in principle, strenuously objected to Vitter’s approach.

But, as I wrote at the time:

It has also won the support of every member of the Louisiana House delegation save Rep. Anh “Joseph” Cao, R-New Orleans, but notably including Rep. Charlie Melancon, the Napoleonville Democrat who is challenging Vitter’s re-election. The six House members wrote Landrieu a collective letter urging her to join them in working to protect Louisiana from losing one of its seven House seats in 2010.

My guess is that Cruz’s approach will be very appealing to his base – even if it might mean a little less clout for Texas in D.C.

Cruz did not specifically say Tuesday that, a la Vitter, he wants to count only citizens for purposes of congressional reapportionment.

But that certainly seems where this is headed.

From the Cruz-Inhofe-Cotton press release, “Accurate census data that reflects the total number of U.S. citizens is a vital part of our democracy.” Inhofe said. “Without it, we can’t responsibly ensure equal representation for states in the House of Representatives or assess voter participation.”

It is a popular position with key Cruz allies, like U.S. Rep. Steve King of Iowa, who was critical to Cruz winning the Iowa presidential caucuses in 2016.

From a Jan. 2 story from Radio Iowa.

Republican Congressman Steve King says census-takers in 2020 should ask if people living in the United States are citizens.

“We need to be counting citizens instead of people for the purposes of redistricting,” King says. “That’s going to take at a minimum a statute and it may take a constitutional amendment and so in this upcoming Census, I want to count separately the citizens separate from the non-citizens, the lawfully present Americans separate from the illegal aliens that are here so that America can see how bad this is.”

King says if the Census is conducted as he proposes, Iowa would gain a congressional seat from a state like California.

“In districts like Maxine Waters, who only needs about 40,000 votes to get reelected in her district and it takes me over 120,000 in mine because hers is loaded with illegals and mine only has a few,” King says.

From a Jan. 24 Michael Scherer story for the Washington Post.

Republicans have repeatedly introduced bills mandating the collection of citizenship data — and its use in apportionment. Rep. Steve King (R-Iowa), an immigration hard-liner, has pushed for a constitutional amendment that would create congressional districts based on the number of U.S. citizens instead of total population.

The Justice Department proposal has been cheered as a step in the right direction by those who argue it is unfair that districts with different numbers of citizens get the same congressional representation.

“At a time when the idea of foreign actors manipulating our electoral process is being given considerable attention, counting illegal aliens in the census for apportionment purposes is a substantive threat to our electoral integrity,” Dale L. Wilcox, the executive director and general counsel for the Immigration Reform Law Institute, said in a statement. “To allow states with a large population of illegal aliens to be given political power at the expense of others is a perversion of the apportionment process.”

From a story by McClatchy’s Tony Pugh:

The Trump administration’s decision to include a controversial question about citizenship on the 2020 Census could set the stage for a larger legal battle over the way state legislative boundaries are crafted.

The outcome of that fight, which would likely be played out in the once-a-decade reapportionment that follows the 2020 Census, could result in a political power shift from urban, largely Democratic strongholds to suburban and rural areas where Republicans typically hold sway.

“It’s critical that the next redistricting cycle account for the citizen residents of districts so urban centers do not unfairly profit from the political subsidy that higher noncitizen populations provide,” said a statement by J. Christian Adams, president of the Public Interest Legal Foundation, a conservative voting rights group.

“If citizen-only population counts were applied to congressional districts in 2020, researchers have found it would cause Arizona, California, Florida and Texas, states with large immigrant populations, to collectively lose eight congressional seats.

Pugh noted that:

(I)n a 2016 U.S. Supreme Court case, Evenwel v. Abbott, plaintiffs argued that states should be able to use the citizen-only population in determining state legislative districts. Although the high court ruled that political districts could be based on total population, including non-eligible voters, their decision left open the possibility that states could use other data to draw their electoral maps.

Citizenship data collected from the new census question would work just fine, said Edward Blum, who launched the Evenwel case as president of the conservative Project on Fair Representation.

“If jurisdictions decide that during the redistricting process, they wish to equalize for citizenship, along with total population, that will now be a viable option for them,” said Blum, also a visiting fellow at the American Enterprise Institute. Blum, who has launched numerous lawsuits against affirmative action policies and voting rights laws nationwide, said Commerce Secretary Wilbur Ross made a “good decision” to include the citizenship question.

In his coverage of the Supreme Court’s ruling in Evenwel v. Abbott, Adam Liptak of the New York Times wrote on April 4, 2016:

WASHINGTON — The Supreme Court unanimously ruled on Monday that states may count all residents, whether or not they are eligible to vote, in drawing election districts. The decision was a major statement on the meaning of a fundamental principle of the American political system, that of “one person one vote.”

“We hold, based on constitutional history, this court’s decisions and longstanding practice, that a state may draw its legislative districts based on total population,” Justice Ruth Bader Ginsburg wrote for the court.

As a practical matter, the ruling mostly helped Democrats and upheld the status quo.

But until this decision, the court had never resolved whether voting districts should contain roughly the same number of people or the same number of eligible voters. Counting all people amplifies the voting power of places that have large numbers of residents who cannot vote legally — including immigrants who are here legally but are not citizens, illegal immigrants and children. Those places tend to be urban and to vote Democratic.

Had the justices required that only eligible voters be counted, the ruling would have shifted political power from cities to rural areas, a move that would have benefited Republicans.

The case concerned a clash between two theories of representative democracy. One seeks to ensure “representational equality,” with elected officials tending to the interests of the same number of people, whether they are voters or not. The other tries to ensure that only those who have political power in the form of a vote control the government.

Justice Ginsburg sided with the first theory. “Nonvoters have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public-education system — and in receiving constituent services, such as help navigating public-benefits bureaucracies,” she wrote in her majority opinion. “By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.”

The decision was more notable for what it did not do than for what it did. As Justice Ginsburg noted, “all states use total population numbers from the census when designing congressional and state-legislative districts.”

The case came from Texas, which counts everybody, but officials there had asked the court to give state lawmakers the option of using different criteria.The Supreme Court did not decide whether other ways of counting were permissible.

“We need not and do not resolve whether, as Texas now argues, states may draw districts to equalize voter-eligible population rather than total population,” Justice Ginsburg wrote.

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Many political scientists say there are practical obstacles to counting only eligible voters, a point Justice Alito echoed. “The decennial census required by the Constitution tallies total population,” he wrote. “These statistics are more reliable and less subject to manipulation and dispute than statistics concerning eligible voters.”

But, for those who want to reapportion and redistrict using citizen numbers only, adding a citizenship question to the 2020 census would remove one of those practical obstacles.

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