The fight for a fair census is not over

The Supreme Court’s decision last week leaves the citizenship question blocked from the 2020 census — for now. The majority admitted it “cannot ignore the disconnect between the decision made and the explanation” the Commerce Department had offered for its inclusion. Even this Court could not find legal lipstick for this pig: Commerce did not, as it had preposterously argued, include the question to help enforce the Voting Rights Act.

This may look like a win for fair census fighters, but it’s probably not the end of the saga. Even if the citizenship question does not end up on the 2020 census, there are serious hurdles ahead in census implementation, many of which fall to states to manage and mitigate. The fight for a fair census is not over by a mile.

The citizenship question still has a path to the census

The Court ruled that the Commerce Department’s proffered rationale for the question is insufficient —but it leaves open the possibility for Commerce to find a different rationale. The Department, which oversees the census, has said it would need to start printing the questionnaire by July 1 to conduct the count on time, but the plaintiffs in the Supreme Court case have argued that October is actually the deadline. It’s possible that Commerce will now change its tune and agree with an October deadline. Additionally, perhaps Trump will now, as he has now threatened, try to “delay” the census altogether.

The clock is ticking fast, but the door is open for the Administration to take another crack at including the citizenship question on the census. In fact, it is likely that Commerce saw the possibility of the decision coming, and has already prepared a cache of alternative rationales for the question. If they do try to push for its inclusion with a different rationale, they’ll do so quickly. It will begin to cost a tremendous amount of money — and inject more chaos — to push back the timeline on printing and other preparation for the census questionnaire and other materials. 

If the Administration gets its way and is able to insert the citizenship question into the census, those most undercounted would be people of color and those in Democratic-leaning states. As GOP operative Thomas Hofeller’s posthumously-released files demonstrate, this would, by design, boost Republican power during redistricting. This in combination with the establishment of SCOTUS’s landmark partisan gerrymandering decisions released last week (Rucho v. Common Cause and Lamone v. Benisek) will allow Republican-controlled states to continue to gerrymander with vicious partisan abandon. 

Regardless of the question, serious hurdles remain

If the citizenship question ends up on the census, states will need to work overtime to quell an undercount. But even if it doesn’t, the Trump administration has thrown two other wrenches into the path of a fair count: slashing federal funding and resources to carry out the census, and making half-baked and problematic plans for online participation.

Already the Census Bureau plans to halve the number of local census offices and slash the number of enumerators. Additionally, this will be the first census in which most households are encouraged to participate online. On top of the fact that this approach affects large swaths of Americans without reliable internet access, many of the IT systems that will be used are untested and insecure. In May, the General Accounting Office flagged more than 500 cybersecurity vulnerabilities related to the planned census infrastructure. Half of these were “high-risk” or “very high-risk”.

States are key to a fair census

While much of the census attention is on the federal level, it’s actually the states that play a key role in addressing these issues. A lot of implementation on the ground will happen in partnership with nonprofits, community groups, and local governments. The states will serve a critical coordinating function, and will need to provide human and financial resources to make up some of the gap caused by severe federal understaffing and funding.

States like Nevada have begun to establish complete count committees to oversee outreach and coordination among public and private sector organizations that will be on the ground to help educate and count hard-to-reach people. And some states are responding to the looming census resources shortfall by authorizing financial outlays to work with local groups on census implementation. For example, Washington state’s 2020 budget allocates about $5 million, and New York has allocated $20 million. 

Regardless of what happens with the citizenship question, we all need to keep our eyes on the states for successful implementation. States will need to marshall all of their resources to quell an undercount, if the question does appear on the census. And even if it doesn’t, states will need to find ways to close severe funding and infrastructure gaps in the federal census bureau’s plans. A fair census count is critical to fair districting and a fair distribution of over $800 billion a year in federal dollars to the states. The next 10 years of congressional and state legislative districts, and hundreds of billions of federal funding, hang in the balance.

Gaby Goldstein is the co-founder and political director at the Sister District Project.