Who Counts?

Talk about gaming the system. Gerrymandering is bad enough;  anyone who has read this blog for very long has encountered my periodic rants and explanations of how legislators choose their voters in order to ensure that the voters don’t get to choose their legislators.

I actually came across another example recently, one of which I had previously been unaware–prison gerrymandering.

Prison gerrymandering occurs because the census counts incarcerated people as residents of the towns where they are confined, even though they can’t vote while imprisoned and most return to their homes after being released. Census data is the basis of redistricting at all levels of government, so the specific location of populations is critically important. Thanks to the drug war, among other counterproductive policies, the United States has an enormous prison population. Counting prisoners in the wrong place undermines the Supreme Court’s requirement that political power be apportioned on the basis of population.

As the Prison Gerrymandering Project puts it, the process of drawing fair and equal districts fails when the underlying data are flawed.

Which brings us to the critical importance of the census.

The Supreme Court recently heard oral arguments in an appeal from lower court rulings  prohibiting the Census Bureau from adding a citizenship question to the upcoming census. Observers reported that the five conservative judges seem likely to reverse the lower courts’ three separate decisions, all of which found the question and the manner of its addition illegal.

If they do, it will be a nakedly political decision and will further undermine what is left of this Court’s legitimacy.

Why do I say that?

First of all, because there is no legitimate reason to ask the question. The census is supposed to count “heads”–the number of people in a given area. There is no current use of census data that requires knowing how many of those residents are citizens. (Wilbur Ross’ lame justification was that this information would somehow protect the voting rights of African-Americans. Not only is there no logical nexus between that goal and the census, this administration has not previously shown any solicitude for the rights of minority voters–quite the contrary.)

There is, of course, a different and blatantly obvious reason Republicans want to add the question: it will hurt Democratic cities and states and benefit Republican ones.

Experts, including several who previously headed the census bureau, have testified that addition of a citizenship question would significantly reduce the response rate of immigrants, both legal and illegal. The undercounts that result would be the basis of the 2021 redistricting, and would reduce the political power of states with large numbers of immigrants, most of which lean Democratic. (The exception is Texas, which sets up an interesting dynamic.)

The Census is also the basis upon which federal monies are distributed back to cities and states for multiple program purposes. Guess which ones would get more and which less?

The three federal judges who have considered the issue have all ruled that Ross failed to follow the legal procedures governing the addition of a question to the Census.

In one of those decisions–a 277 page enumeration of the flaws in Ross’ attempt to subvert the accuracy of the count–the judge found that the addition of the citizenship question was “unlawful” because of “a veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act, including cherry-picking evidence to support his effort.

“To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a ‘government of laws, and not of men,’ ” Furman wrote, quoting one of the country’s Founding Fathers, John Adams.

There are two pending cases in this year’s Supreme Court term that will go a long way toward affirming or destroying the rule of law in our country: the combined partisan gerrymandering cases from Maryland and North Carolina, and the Census case.

The fundamental issue in both is whether America will insist on fair elections in which all citizens’ votes count, or whether partisans will be allowed to continue gaming the system.


  1. Speaking of Choosing your VOTERS….
    My understanding of the Lugar years was that the Republicans saw city after city turn to Black Democratic leaders. That scared them a lot. HOW can we prevent that in Indianapolis?
    What if we let the suburban voters vote in the Indianapolis election? There you go. A lot more Republican voters. NOW City hall will be safe for another generation or two. Thanks Dick Lugar. It worked for a long time. He was ahead of his time.

  2. “There is no current use of census data that requires knowing how many of those residents are citizens.”

    There is no current LEGAL use of census data regarding citizenship; the current administration has foregone Rule of Law and sidestepped the Constitution repeatedly. The reason for their demands to add the citizenship question is obvious; directly connected to Trump’s imaginary “national emergency” (yes, there is an emergency it just is not at the national level) at the southern border and his determination to get those billions to build HIS wall. The question of citizenship would result in lowering the “head count” in areas where government assistance, public safety, public school funds, access to medical care, infrastructure renovation and many other public services is most needed; thereby cutting assistance to American citizens. Another form of Trump punishment for low and middle-income families.

  3. patmcc,

    Jacksonville pulled off this same maneuver in the ’60s. It was called “Consolidation.” At the time, the city had the largest concentration of African-Americans in the Deep South, other than Birmingham. With the pretext of consolidating services, they made the county (Duval), the City of Jacksonville. We now became the “largest city in the world” (in land mass). The additional voters were, overwhelmingly, WHITE.

    When it comes to racism, don’t try to compete with Jacksonville. It’s a “lost cause.”

  4. Consider the tax impact on municipalities inherent in the three census cases, and consider the record of the ringmaster (Wilbur Ross, Secretary of Commerce) who came up with this nakedly political and racist idea, one designed to punish mostly democratic cities. Ross, like many in the Trump administration, should be in jail for his co-management with a Russian friendly with Putin of the Bank of Cyprus, a notorious money laundering institution on the EU’s no-no list, and I have to wonder if he and his Russian co-manager did not launder a bunch to Trump during his tenure there and if Trump brought him into the administration and gave him an elevated status from which to continue his fraudulent activities such as the census count – but that is a topic for another day.

    Back to tax impact > When the feds find an excuse (as they will if the court reverses the three cases under review), there go billions of dollars that would otherwise have been distributed to municipalities under existing law for municipal services including but not limited to money for police and other such costs, and in order to keep public services intact those who live in cities will either experience substantial increases in local taxes or suffer loss of public services across the board (police, chuckholes, sewers, traffic control, etc.), and guess what? Most of those affected are Democrats. Such a surprise!

    To do > elect Democrats at every level of government, but especially at the federal level, and if the court reverses these three appeals (as is widely expected), do a redo of the statutes fleshing out the constitutionally required census decennial to reflect a true count census, thus reversing the court’s reversal. Trouble is (and Wilbur’s timing is impeccable), we have a count coming on only next year and with Mitch in control of the Senate, there is no chance that such correcting legislation can become law (particularly since a Trump veto is a given).

    So how to correct this upcoming municipal disaster? Assuming a Democratic sweep for president and Democratic control of both House and Senate, reinstate the federal subsidies to municipalities that were adversely affected by Wilbur’s court-approved punitive and racist census count, or even increase such former subsidies. How to pay for such an increase? Easy. Repeal the Trump/Ryan giveaway tax cuts of December, 2017, to hugely profitable but non-taxpaying members of the rich and corporate class, one in which I paid more taxes than Boeing, Verizon et al. Problem solved.

  5. Do the prison populations at Pendleton, Grissom, Terre Haute, and NW Indiana give those cities/counties extra funds to spend however they choose?

  6. This is part of the Republican party’s near-term plan for keeping power regardless of the will of the majority. And it’s been thoroughly normalized in American public discourse. The bulk of the population now considers it blandly normal for less than half the population to vote, and for the perpetual ruling party to be the one that receives less than half of the votes cast due to gerrymandering, the electoral college, the structure of the Senate, Senate stonewalling and manipulation of court appointments, etc.

    I say near-term because demographic trends that work against the Republican party will continue, which means that its techniques for retaining a figleaf of “democratic” legitimacy without true majority support will have to become more effective. We’re going to see more schemes for this purpose, and with demographics working steadily against the Republicans at the same time that the entities supposed to enforce democratic norms are either weakened or controlled by the same party that wants them gone, the strategies are going to become increasingly brazen.

  7. In the event that SCOTUS decides to allow the citizenship question, the remedy is simple. DO NOT ANSWER THAT QUESTION! The Census Bureau cannot force anyone even to respond to the questionnaire, let alone to any specific question.

  8. I joined Ancestry a few years ago to discover “my roots”. The actual Census data from 1930 which is available on line asked citizenship questions, including where you were born. If you were foreign born, the Census asked for your country of origin and when you arrived in the USA and if you were naturalized.

    Interesting you bring up prisoners being counted in the census. Bernie Sanders has said he is in favor of allowing prisoners their right to vote. The pundits on cable news immediately jumped all over this using the extreme example of allowing the Boston Marathon Bomber the right to vote. Sanders response was a citizen should not be denied the right to vote no matter what their status is. As Sanders pointed out there is a slippery slope once you start fashioning laws to deny a citizen right to vote.

  9. Again, Democrats represent the future to which we are going and over which we have little control and therefore must adapt to, and Republicans represent the past which entitled oligarchs and their wealthy, white, male, Christian (sort of anyways), heterosexual, gun toting, syncopates. Or, the majority vs a minority which must expand it’s presence like a wild animal looking as fierce as possible though eminently defeatable.

  10. Pete,

    “Or, the majority vs a minority which must expand it’s presence like a wild animal looking as fierce as possible though eminently defeatable.

    We’re not going to get anywhere by BLUFFING. That’s exactly how we got in this “stinking” mess, we are now in.

  11. Peggy – a fantastic suggestion and “ready for going viral” by any number of groups across the US. Stand by!!!

  12. Respectful dissent:

    “The census is supposed to count “heads”–the number of people in a given area.”

    The census has been used for many years to collect a wide variety of economic and social information, not just “heads”. I invite commenters to sample the extent of this by reviewing questions asked over the years (including citizenship).


    And so long as gerrymandering reflects the same population in every political subdivision, what is the Constitutional basis for prohibiting it?

    Elections have consequences.

  13. John Neal,

    Adding a citizenship question is not unconstitutional. (Just because something is a bad idea doesn’t make it unconstitutional.) The reason the courts have ruled against Ross is because he ignored the statutory requirements imposed by the Administrative Procedures Act. There is a mandated process intended to ensure that proposed questions are likely to elicit the desired information, that they won’t have unintended negative consequences, etc. Ross didn’t follow the rules–that’s the main reason he lost in the lower courts. (He also was caught in some egregious lies.)

  14. Back, I believe, in the 90’s, it was not uncommon to see articles explaining that the U.S., facing impending fertility rate declines like the Italians and much of Europe, would continue to lead the economic pack thanks to population growth attributable to immigration (unlike most European countries). Although not universally applauded, this notion seemed like received wisdom in many economic circles. Now, confronted with a problem that may have become intractable, “toughness” has replaced “thoughtful” as the way to appeal to voters. Regrettably, toughness does not contribute to the solution but merely postpones what looks like an impending day of reckoning. While we can’t declare a national open house for massive numbers of asylum seekers, some of that 90’s-style wisdom may still be relevant and should be re-introduced as an element in the conversation.

    Bringing a citizenship question into the mix serves no purpose except that of Wilbur Ross.

  15. I believe that there are two possibilities: either Trump is an electoral anomaly or a cultural symptom.

    The data from 2016 and 2018 indicates the former. HRC won the popular vote handily in 2016 and Democrats did as well in 2018. Dirty tricks explain the 2016 EC results.

    If that’s wrong however the country’s problems are much harder to solve because it means that we’ve just evolved into a different bipolar culture consisting of two warring tribes with freedom loving people a minority and power loving people a majority. Typically that’s the formula for revolutions.

    Of course the next data point will be 2020 so we have a very short time to cast our fate with democracy or alternatively revolution.

  16. Pete, minor quibble, we didn’t evolve into two warring tribes. It started when they persuaded the evangelicals to join the republicans(abortion). Then preaching from the pulpit explained that compromising with the evil Democrats would be a sin! And the Demos kept compromising with the devil because surely if we just offer a small compromise the republicans will go along. But like with the ACA, we allowed amendment after amendment from them, without a single affirmative vote from their side! It’s been all downhill ever since! Therefore, it’s been a conscious choice by them! …………………Democrats..l(center)…………………………………………repukes(in the process of falling off the edge!)

  17. Monotonous, you are correct about the questions asked in the past. They also asked where your parents were born. In 1920, they asked what language your parents (not necessarily living in the US) spoke. In 1900, they asked “mother of how many” followed by “how many living”. These things were trying to serve a civic/social purpose.

    However, being an immigrant in 1930 in an era where we praised the “melting pot”, is different from the Trump era, where the meme is “round them up and deport them”.

    The argument that wasn’t made surprises me (or maybe it was just unreported) – We know that asking the question will lead to inaccurate head counts. Well by the same token, any information gleaned from that question will be inaccurate as well — so what actual purpose could it serve.

    Peggy – great minds think alike 8)>
    I was just thinking of suggesting that Sheila address this possibility in a post. I have been thinking that (assuming a bad decision by The Supremes) we need massive civil disobedience in refusing to answer that question, combined with huge outreach to the Latino community to be certain that they do participate in the head count – and only the head count.

    Sheila – thanks for bringing up the prison census. I hadn’t thought about how our massive incarceration rate (and use of private prisons) would skew the census.

  18. @Pete – AOC recently tweeted “He can stay, he can go. He can be impeached, or voted out in 2020. But removing Trump will not remove the infrastructure of an entire party that embraced him; the dark money that funded him; the online radicalization that drummed his army; nor the racism he amplified+reanimated.”

    I submit that the recent elections show that he is a symptom, not an anomaly. (IMO 2018 was about energized Democrats, not horrified Republicans.) Only a few Republican officeholders have even registered tepid disapproval (which is quickly memory-holed) about anything he’s said or done, and from the rest – a deafening silence. The alarming fact is that the Republican party is just fine with him. And he’s not only indicated from the very beginning that he has no interest whatever in the 80% of the citizens that either voted against him or didn’t vote at all, he proves it daily.

    I just got a fundraising letter from the DLCC that tells me Colorado Republicans are trying to get a recall campaign started for a Democrat recently elected there. And that plans are in the works for up to 20 more. It is by now glaringly obvious that Republicans simply do not accept the legitimacy of democratic (small d) elections. If Republicans are elected, they gerrymander and vote-suppress to make sure it stays that way, and if Democrats are elected they do everything possible to reverse (not just kneecap government, but actively reverse the will of the voters) the result, legal or not.

    I fear Democrats in leadership are either unwilling or unable to cope with the way the Republicans have unilaterally changed the rules of politics over the last generation, and are at risk of signing the death warrant of both the Democratic party and even the very “concept of America” if they continue to apply political rules of the 1970s to the politics of the 2020s. Case in point – waffling on impeachment because the Senate won’t convict.

  19. Ms. Kennedy,

    I am honored you responded to my comment. My response was delayed because I went back and read the transcript of the oral arguments before the Supreme Court (about 100 pages). This is so my response would be more fully informed.

    1. I did not assert a citizen census question was a constitutional one. I merely pointed out that census provides much more than the enumeration of “heads”. And that for many years it was included in the census, along with a host of other economic, social and demographic questions.
    2. The Supreme Court thoughtfully considered and debated whether the benefits of adding the question again would outweigh the liabilities, giving scant consideration (on both sides) to merely whether the Administrative Procedures Act had been violated. I think this is how it should be.
    3. And it does not automatically follow that including the question on the census, or relying on other administrative records, will yield better or worse enumeration and demographic information. The transcript is replete with substantive and persuasive arguments for and against.

  20. John – “merely?” Violation of the Administrative Procedures Act provides an adequate rationale for the trial courts’ findings – and how questions were asked on the headcount form in the past used by advertisers and others is immaterial to the issue. Wilbur did not follow the rules, rules set forth by law, and while the politicized Supreme Court may reverse, I think the three trial courts’ decisions were correct.

  21. Gerald,

    You are right about the word choice “merely”. The APA violation was serious and corrupt. I stand by the rest.


  22. John

    The question before the court is, “did Ross violate the Administrative Procedures Act?” Three lower courts have determined that the answer is “Yes”. That should be the end of the discussion.

    Deciding the case on the basis of “Should a citizenship question be added to the Census, at this time, in violation of the APA” is both moving the goalposts by changing the question before the court, and ignoring the concept of the rule of law.

    Next thing you know they’ll decide that “shall” means “doesn’t have to”, as in, “the IRS shall release tax returns on request of Congress”

  23. Warren,

    Department of Commerce v. New York
    Docket No. Op. Below Argument Opinion Vote Author Term
    18-966 S.D.N.Y. Apr 23, 2019
    Tr.Aud. TBD TBD TBD OT 2018
    Issues: (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.


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