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© Frank


Those Enumerated

by David Schulltz
October 19, 2020

This interview with David Schultz, professor of political science and legal studies at Hamlin University in Saint Paul, Minnesota, and a professor of law at the University of Minnesota, was conducted and condensed by franknews.

What is the origin of the census? 

The census has a constitutional foundation and is tied to the core notion of our democracy. The purpose of the census is to ensure that we provide a good count of how many people there are and link that count to representation. 

The census is listed in Article I, Section 2 of The Constitution. Article I deals with the powers of Congress. It discusses how the House of Representatives is apportioned based on the state population and calls for a census every 10 years in order to count all the persons who are living in the United States. 

Can you clarify how people are counted? Is the process still a door to door, head by head counting? 

Some of it is. Traditionally that is the way the census is run. A lot of it has, especially during the pandemic, switched to brochures through the US mail that ask people to go online and to fill out the census form. Even now, outside of the efforts throughout the mail and on the internet, there are still census takers who go door to door to try to reach whoever has not responded. 

How do you count for a homeless population, a population that doesn't have access to technology, or a population living below the poverty line who might have a harder time being counted? How do you ensure that those people are also being represented within the census? 

I'm also going to add to this consideration individuals who are not documented. It's very difficult to count all of these different populations. Some of them may be afraid of answering the questions, some of them may be hard to locate, and some of them simply do not want to respond. 

Occasionally, there will be some slight statistical corrections within the census — it is possible to extrapolate from existing numbers to say that there might be additional individuals in specific areas. But, to a large extent, the census has to try to identify pockets of where people are living in tents or may not want to respond to the census, and go out and count them. These are not easy things to do.

We may never be sure that our census count is 100% accurate. 

The Constitution says that the only people to be counted are free persons — and all other persons are to be counted as three-fifths of a person. How did we move past that? Have there been efforts to make sure we count everyone? 

The original constitution is really the product of compromise, fear, and distrust. Go back to 1787. The fear and distrust was between the small populous states versus the large populous states, the North versus the South, the slave states versus free states. All of them were really concerned that if the new constitution was not structured in a certain way, they might be the loser.

Among the battles that were fought was the gap between the free and the slave states over representation. The three-fifths clause was really central to the original constitution but has been removed from the constitution through various amendments, including the 14th amendment, which provides for equal protection under the law, and the 13th amendment, which outlawed slavery. The three-fifths clause counted slaves as three-fifths persons for the purpose of representation and taxes, but in neither case were African-Americans given any rights, let alone voting rights.

Historically, there have been strong efforts to try to count everybody. Of course, when you think back to the 19th century, we were dealing with a much more agrarian, much more rural America. Now, in very large urban areas, it can be difficult to count everyone. 

But, over time, at least since the Civil War and maybe even since the beginning of The Republic, there hasn't been a politicization over the census and the counting of people to the degree that we are seeing this year. This polarization over counting is unique.

What is the point of politicizing something like the census?  What can the census shape? Can we back up and look at how the census shaped American politics after the 2010 census year?

The census shapes the political landscape in a variety of ways. 

The 2010 census happened to be in a year that Republicans did exceedingly well across the United States at the polls — they captured state legislatures, governorships, and so forth. In 2011, when it was time to draw the district lines across the United States, Republicans, who were in control of many statehouses, drew lines to their advantage.

The 2010 census put into place district lines, across many states, that really favored one party over another, and Republicans were set up for doing exceedingly well in a decade of elections.

The elections this year are still taking place under the district lines that were drawn in 2011. Of course, we know that partisan gerrymandering is a problem, but the Supreme Court has said that they don't want the federal courts to address it. Again, remember why the census is so important. It affects your count for the population. The count for the population affects the representation in Congress. 

The census also impacts how many electoral votes a state has in the election of the president. It has an enormous impact on federal aid money that comes back to the state.

An accurate census count could mean the difference in perhaps billions, if not tens of billions of dollars, going to a particular state.

It can also affect how money is earmarked for particular types of programs. 

Right. There has been a push to end the census count early, and a recent Supreme Court ruling to end the count by October 31st. Why is the timeline so contentious? 

Normally one would think that in a pandemic as serious as what we are experiencing right now, that there would be all kinds of reasons to want to extend the date of the census to ensure an accurate count. Right now people are afraid to open doors. Right now people probably need more time to do the census because of all the other challenges that they are facing. 

But, we have wound up with a partisan divide over the census that is due, in part, to the political rhetoric Donald Trump started four years ago, where he was critical of immigration and critical of immigrants, including those lacking documentation in the United States. In addition, Trump would prefer to not count undocumented immigrants in the United States. That has the potential to have a significant impact on representation. Some people are arguing that it could hurt areas of the country where the Democratic party leads, such as big cities. But even for those legally in the US, they may fear that completing the census puts them at risk for deportation. 

Politicizing the census has a partisan aspect to it.

Who decides the timeline of the census?

Congress has established parameters for the conducting of a census — it has the authority to do so under the Constitution. The president, in many ways, is trying to preempt the authority of Congress. At this point, it looks like the census is going to end on October 31 and there will not be an extension. The next battle is going to be a hearing on November 30th regarding whether the president can exclude undocumented individuals from the census count.

Is there a precedent for that?

Not really, no. The census says all persons, but it doesn't specify a particular type of person — it's broad language seems to suggest that anybody who is permanently dwelling in the United States should be counted as a person. Again, we haven't had a case like this before the Supreme Court. This decision will be brand new in terms of who should be counted.

Do you think that there's a better or more efficient way to run the census? 

The census could be improved by using the technologies that are available. But, of course, we know there is an enormous digital divide, which means some people are not going to have access to that sort of technology. but I think the real question about the census is not how do we make it more efficient, but rather how do we deal with the political factors around the counting process.

By some estimates, we have 12 million individuals who live in the United States without documentation.

How do you reach those people who are fearful that if they respond they could face deportation? That is the real question.

There are also those legally in the US who fear answering the census puts them at risk.  Part of getting an accurate census gets into immigration policy and gets into the question of how to instill trust among people.

Are there suggestions for how people might feel more comfortable? Is there a legal way to ensure protection for those people who might feel nervous about participating?

You could pass laws that say that the information that individuals disclose on the census would not be shared with any immigration authorities. But again, even if those laws were in place, how do you address the basic fear and suspicion and distrust that many people have? It probably would require a really significant education program. It probably would also require the hiring of census workers who look at the people who are taking the census. I'm not sure if the Census Bureau has done a good enough job with that kind of diversity.

In many ways, we've never faced this problem to this degree before. And to a large extent, the centrality of the issue lies in blaming immigrants for America's problems and labeling individuals who are not documented as part of the problem.

No matter what Congress does, no matter how many laws it passes, our census is going to remain political unless we solve the political and policy issues that surround immigration.