ACR Project Comments on Census Bureau Proposal Concerning the Decennial Census

The ACR Project filed a comment with the Census Bureau (the relating to its proposed changes to the decennial census.  You can read that comment, below.

Through the Proposed Rule, the Bureau would advance two regulatory changes. The first adjusts the Bureau’s definitions of “usual residence.” The adjustment clarifies how the Bureau will handle both: (a) various classes of non-citizens present in the U.S. at the next census; and (b) various classes of American citizens residing outside the U.S. at that time. The second limits the kinds of questions to be included in the decennial census to those which “advance the fundamental, Constitutional purpose of the decennial census, which is to conduct an enumeration to ascertain the population count for [Congressional and Electoral College] apportionment.”

Residency Proposal

Much of the Residency Proposal concerns the proper handling of foreign citizens present in the U.S. These portions build on issues the current Administration has deeply considered and previously litigated. Trusting that the Administration is well aware of the issues these portions raise, our comment does not address them. Instead, we focus on an oddity in the Residency Proposal that appears to have eluded the Bureau’s notice.

The Bureau’s regulations define “ordinary residency.” Since 1970, the definition has included and allocated overseas military in and to the states where they would otherwise reside.  Since 1990, the Bureau has done the same for overseas civilian federal employees. These policies are reasonable and potentially constitutionally required (by the “one person, one vote” line of cases, which require that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”).

The Residency Proposal would continue both these sensible policies.

Simultaneously, the Residency Proposal provides that “Persons living outside the United States on Census Day who are not military or civilian employees of the U.S. government and are not dependents living with military or civilian employees of the U.S. government [shall n]ot [be] counted in the stateside census.” This treatment appears traditional and continues the longstanding practice that only the aforementioned adjustments in 1970 and 1990 excepted for federal employees.

But Congress has required all states to “permit” all such individuals “to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office[.]”  This means American expatriates outside federal employment: (a) retain their right to vote in Congressional elections; and (b) do not appear in the census or get considered in the apportionment of Congressional seats. That’s a structural problem for state efforts to draw maps equalizing the voting strength of all U.S. citizens. Nor is the structural problem immaterial. The best current estimates put the total number of such American expatriates outside government employment at ~5.5 million.  That means the American expatriate population falls somewhere between the populations of South Carolina and Minnesota.

Our comment asks the Bureau to consider how to reconcile the traditional counting policy for repeated in the Residency Proposal, the Uniformed and Overseas Citizen Absentee Voting Act, and the courts’ “one person, one vote” cases.

Classification Proposal

The Classification Proposal focuses on the core constitutional purpose of the decennial census: counting the population as needed to re-apportion Congressional seats and Electoral College votes.  The Bureau has observed that “the more questions that are included on the decennial census questionnaire, the lower the overall response rate” becomes. To maximize the response rate, the Classification Proposal would forbid including unrelated statistical questions on race or ethnicity* in the decennial census.

In our comment, we support this move. We also argue that–in deference to the Supreme Court having held that the existing racial classification system is “irrational”–the Bureau should go further.  We ask it to extend the prohibition across all its data collections. Recognizing that the Bureau may not wish to take so pure a step at this time, we also suggested an alternative that would address the flaws in the existing classification system the Supreme Court has recognized, without entirely doing away with inquiries into the ancestry of today’s Americans.

The ACR Project offered its comments in the hope that they will help optimize the eventual final rule the Bureau issues based on the Proposed Rule.

* – Strangely, it would do the same for “sexual orientation.”  It is unclear why.  There does not appear to be any history of the decennial census including such questions and the constitutional issues inherent in their inclusion would differ from those implicated in the descent questions the Classification Proposal otherwise forbids.