[EL] Politico article and Census counting citizens

[Nate Persily]

I am answering on my phone so must keep it short.  The argument in the politico piece is laid out in greater detail in my Cardozo law review article, The Law of the Census. 
Of course, the short form includes race questions.  I was referring (as you know) to the types of general population data that could be used to comply with one person one vote.  The short form also includes gender and owner/renter status but, as i think you realize, providing a complete guide to the questionnaire was not my main point. The Constitution did contemplate counting race, by the way, which is why the 3/5ths clause and the reference to Indians not taxed led even the earliest censuses to have race questions.  Now, of course, we need such data to comply with the VRA.
And yes, congress could add a citizenship question to the short form, as it had for the long form asked of one sixth of the population until the 2010 census. (Just as it could ask people's height  and weight.) But the constitution does not require it and on what constitutional basis should (or could) the Court force congress to add such a question to the census?  Leave aside, for the moment, the obvious point that adding a citizenship question would undoubtedly chill participation in the census from some communities.  It would certainly be strange for the court to say that the constitution's specification of an  actual enumeration of persons (i.e. the census clause)  requires an actual enumeration of citizens.
But on the larger point i think some would agree with you that the court should put its foot down and adopt a uniform standard: whether people, voters, citizens or whatever.   I am not in that camp.  And the prisoner issue highlights the reason why i am not.  If we go down this road of redistricting on the basis of eligible voters, then we will next be dealing with whether the court should now somehow force adjustments (or perhaps even a new kind of census) for prisoners, children, disfranchised felons and other communities without the vote.  I think states should have discretion to do what NY, MD and Delaware did, and adjust census data to reassign prisoners to their preincarceration address (or even to delete prison census blocks from the data).  But i dont think the constitution demands it, and in many states the representational disparities caused by counting prisoners in prison would not exist.
So, yes, if a state wants to create its own dataset and use it for redistricting,  it can do so.  That is what i take  Burns v Richardson to mean.  But if the Court now takes on the role of editing the census form and redistricting dataset, i think it will find that the decision will not be so easily cabined to citizenship.




Nate PersilyJames B. McClatchy Professor of LawStanford Law SchoolCrown QuadrangleStanford, CA 94305-8610(917) 570-3223nate at persily.comwww.persily.com

-------- Original message --------
From: Douglas Johnson <djohnson at ndcresearch.com> 
Date: 06/04/2015  9:43 AM  (GMT-08:00) 
To: 'Rick Hasen' <rhasen at law.uci.edu>, law-election at uci.edu 
Subject: Re: [EL] Politico article and Census counting citizens 

The “big data problem” part of Dr. Persily’s article seems incorrect. For one thing, the column opens with a factually incorrect statement about the current Census: “[T]hat data set counts just two things: the total number of people, and the number of people over the age of 18.”  As Dr. Persily no doubt knows, the current Census short form also counts the members of various ethnic groups [I suspect deleting a reference to that was an editor’s error]. But that’s a secondary issue. The heart of the article’s headline-focused argument is near the end: “The fact that no accurate count of citizens exists should be the end of the matter. Unless the justices are prepared to mandate a new kind of citizen census — one never contemplated by the Constitution — then they should leave it to the states to draw their districts using the most accurate data available. “The Constitution, however, also did not contemplate counting voting age population nor ethnicity, and both of those questions have been a part of the Census short form for decades. I see no reason why adding a citizenship question is more of a constitutional question than adding age and ethnicity questions were when they were added. As Dr. Persily’s article lays out well, districting rules are (somewhat oddly) separated from apportionment rules, and the definition of “one person, one vote” is remarkably unspecified by the court.  But I would rebut the article’s main point by saying such an important policy question should not be by whether or not a question is included or excluded from the Census short form. The questions on the form have already ventured far from the Constitutionally mandated count of “persons,” and adding or excluding a citizenship question is a policy decision, not be a process nor legal challenge.  While I have not taken a position either way, I believe that since the Court made this decision justiciable, it would be good for the Court to answer what it meant when it said ‘one person, one vote,’ either a)      Each elected official in a given elected body should represent an equal number of people? orb)      Each eligible voter should have equal voting power over the decision of who is elected? Think of it this way: if a decision is made to add citizenship to the Census form, would proponents of answer (a) still want the decision left to the individual jurisdictions? -          Doug Douglas Johnson, FellowRose Institute of State and Local Governmentat Claremont McKenna College douglas.johnson at cmc.edu310-200-2058    Nate Persily on The Supreme Court’s Big Data Problem in EvenwelPosted on June 3, 2015 7:16 am by Rick HasenPolitico:Legitimate philosophical arguments can be made in favor of using one set of statistics over another — just as one could argue that some concerns in redistricting, such as keeping counties or communities intact, should override the concern for precise equality. A redistricting plan based on equal numbers of people, the system we have now, also ensures that the workload and constituent-related burdens of representatives are roughly equal. In effect, equal representation may be more important than equal voting power itself.But the question that confronts the court as it prepares to hear the Evenwel case in the fall is whether the Constitution mandates the use of one statistic to the exclusion of all else. The fact that no accurate count of citizens exists should be the end of the matter. Unless the justices are prepared to mandate a new kind of citizen census — one never contemplated by the Constitution — then they should leave it to the states to draw their districts using the most accurate data available. The one person, one vote rule isn’t broken, and the Supreme Court shouldn’t try to fix it.  
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