The sixth sentence of the Constitution imposes one of the few affirmative duties on the federal government: to conduct an “actual Enumeration” of the population once every 10 years. The latest iteration began in earnest in early March, when households across the United States began receiving mailers encouraging them to respond to the 2020 Census on paper, by phone, or, for the first time, online. If all had gone according to plan, census-takers would have started going door to door this month to follow up with nonresponsive households. But the arrival of COVID-19 has made door-knocking unrealistic for the time being, jeopardizing the government’s ability to “actually enumerate” all Americans and imperiling the accuracy of data that will be used to determine political representation in Congress and the distribution of more than $1.5 trillion in federal funds.
Conducting the census is a monumental endeavor even in the best of times, requiring hundreds of thousands of census-takers to fan out across the country, talk to neighbors, and coordinate with local organizations to get out the count. With much of the country in lockdown, this job is all but impossible. But a failed census will not affect everyone equally: As with the spread of COVID-19 itself, vulnerable populations have the most to lose. By the Census Bureau’s own estimates, only 60.5 percent of the population will respond to the census questionnaire on their own. This makes in-person outreach critical to reaching hard-to-count communities, those who respond on their own at lower rates than the general population, and who are likely to respond at even lower rates in the midst of a global pandemic that has hit black and Hispanic Americans the hardest.
As the Census Bureau’s Associate Director Al Fontenot recently admitted, “Of all of our worst nightmares of things that could have gone wrong with the census, we did not anticipate this set of actions.”
In responding to the virus, the Census Bureau is racing against a ticking clock: Under current law, the Bureau must count people where they were living on April 1 and report the count to the president by the end of December. To get an accurate count under the circumstances, the Bureau will have to delay operations as much as possible within that timeframe—or ask Congress to amend the law to postpone the census in its entirety. Until yesterday, the Bureau had extended the counting period only two weeks, from the end of July to mid-August. On Monday, following urging from Democratic lawmakers, the Trump administration—perhaps finally reckoning with the difficulty of conducting a census during a public-health crisis—indicated that it would further extend counting until the end of October if Congress agreed to delay the deadlines for the delivery of apportionment and redistricting data. Further delays may still be necessary. No matter the ultimate timeline, the Bureau will need to devote more resources both now, and when field operations resume, to reach minority communities, the poor, the homeless, and other hard-to-count populations.
A Nightmare Scenario
In addition to delaying the end of counting and cancelling an in-person kickoff event in mid-March, the Census Bureau will be postponing the start of its door-knocking operation for most of the country until August. After a census employee contracted COVID-19, the Bureau announced that it would be reducing the number of staff at the paper-processing facility in Jeffersonville, Indiana, where the employee worked. The Bureau also temporarily stopped hiring door-knockers and delayed its mobile questionnaire assistance program, through which Census Bureau employees armed with tablets would have stationed themselves in low-response areas to help people complete the questionnaire online. Given uncertainties surrounding the trajectory of the outbreak, additional delays are possible.
The Bureau is right to limit face-to-face interaction at the height of social distancing. But limiting in-person enumeration will not be without costs: It will become much more difficult to count immigrants, communities of color, the poor, and the homeless—the very people the Census Bureau should be making extra efforts to reach. No census has counted these communities fully, starting from the first census, in 1790, when enslaved persons were counted as three-fifths of a person. In the most recent census, according to the Bureau’s own figures, African Americans were undercounted by 2.1 percent and Hispanics by 1.5 percent—an omission the size of two congressional districts.
Advocates fear an even larger undercount this time around. Although the Supreme Court struck down the Trump administration’s effort to include a citizenship question on the 2020 Census form just last term, the specter of that question may still depress response rates, especially given high levels of fear among immigrants and historically low levels of trust in government. In a survey released by the Census Bureau just last year, a staggering 47 percent of Hispanics and 41 percent of Asian Americans said they could trust the federal government “some” or “none” of the time.
What’s more, even before the arrival of COVID-19, the Bureau, under the Trump administration, had been paring back many of the programs geared toward counting hard-to-count populations, including door-to-door visits and partnerships with community organizations. The Bureau opened up half as many local census offices as it did in 2010 and hired half as many partnership staff to oversee its collaborations with local organizations. Most worrisome, the Bureau initially planned to deploy 320,000 census-takers, far fewer than the 516,000 census-takers it dispatched in 2010—despite a growing population, higher levels of distrust in government, and the Bureau’s own studies suggesting that households would self-respond to the 2020 Census at a rate that is 20 percentage points lower than that predicted for the last census.
As at least two federal lawsuits have maintained, such cuts disproportionately harm hard-to-count communities, who are most likely to benefit from sustained outreach. (Disclaimer: we participated as student attorneys on both of these cases.) And these cuts are all the more troubling in the face of a pandemic, which will make vulnerable communities even harder to count. Hard-to-count communities tend to have reduced internet access, which means that they will be less able to access and fill out the online questionnaire from their homes. Such communities are also at disproportionate risk of contracting COVID-19 as well as suffering from the virus’ economic fallout. Early data already indicates that black people in the United States are dying at higher rates from the disease: In Michigan, for example, where the population is 15 percent black, black residents made up 40 percent of COVID-19 deaths as of early April. Finally, health concerns may make it more difficult for the Census Bureau to hire census-takers to knock on doors in low-response areas. Even prior to the outbreak, recruiting for such roles had stalled.
Although the Bureau has rightly postponed its door-knocking operation in the name of public safety, it must be prepared—if and when normal operations resume—to spend extra effort reaching hard-to-count communities. As decades of census litigation have made plain, the Bureau’s actions must bear “a reasonable relationship” to the completion of an actual enumeration. As the Second Circuit held in the aftermath of the 1980 census, people “are entitled to the most accurate head count feasible as a basis for any subsequent statistical adjustment.” Even if some statistical adjustments are possible before the president submits census data to Congress, “there is no indication that changes in the conventional head count can or would be made once census figures are reported.” That’s why it’s so important to get the count right the first time around; judges are unlikely to mandate statistical updates to the census, even if an undercount harms some groups more than others.
In the midst of the current crisis, an accurate count will require the Census Bureau to scale up efforts to count vulnerable populations. As a result of the coronavirus, the Bureau may need to conduct its door-knocking operation in a more compressed time period than normal, even if counting extends into October, and especially if there’s a second wave of infections in the fall. This will require an intense, coordinated effort marshalling a larger army of field staff. The Bureau will have to be ready to hire and deploy even more census-takers than originally planned. It should also be prepared to further postpone efforts to count the homeless and people living in nursing homes and prisons until the worst of the pandemic passes. Even with an extended timeline for counting, the Bureau will still need to contend with changed attitudes toward social contact and varying local policies on social-distancing—not to mention the possibility of another lockdown in the fall.
There is a risk that the Census Bureau will exploit the crisis to increase its reliance on novel data sources, such as administrative records, at the expense of in-person enumeration. This would be misguided. Although the Bureau may be tempted to supplement the count with such sources, these records—which include federal tax returns, 2010 census data, Medicare enrollment information, and other such data—have never been used in the decennial census, and for good reason: They tend to under-represent communities of color, particularly immigrant communities, and to misidentify housing units as vacant in areas with a high concentration of minority households more than the decennial Census.
Plan B: Postpone the Census?
If the coronavirus pandemic does not abate in the next few months and lifting social distancing restrictions remains unsafe, more drastic action will be needed: As the Trump administration has just requested, Congress may have to use its constitutional authority to delay the census—and particularly the delivery of apportionment and redistricting data—in its entirety. This would be a dramatic step, given that census questionnaires have already been mailed and hiring has been underway. It would also be unprecedented. The census took place as planned even during the 1918-1920 flu pandemic, although the outbreak helped make it “impossible to bring [the work of enumerators] to completion.” A report on the 1920 Census later found that “Because of … the almost complete cessation of immigration in 1914, and to a less extent to the ravages of the influenza pandemics and the effects of the war, many cities and towns have been disappointed with the census figures, and have filed protests questioning their accuracy.”
Postponing the census would have considerable legal consequences. Under current statutory deadlines, the population count must be completed by December 31, 2020, and transmitted by the Secretary of Commerce to the president. In addition to producing the population count, the Bureau also processes the information it has collected and produces the statistics used for reapportionment. In the past, the Bureau has sent the population and apportionment counts to the president shortly before the required statutory deadline. Conceivably, the period for compiling and analyzing the data could be compressed, but it is not clear whether the Bureau could complete the relevant work in a shorter time frame.
Once the president receives the count, a delayed census might jeopardize an additional set of deadlines. By law, within the first week of the new Congress, the president must send lawmakers the population information for each state and the number of representatives each will receive. Within 15 calendar days of receiving this report, Congress must then transmit to the states the number of representatives to which they are entitled. Almost all states then use the data as the basis for redistricting, although a few states allow for alternate procedures if the results of the federal census are unavailable. The Ohio Constitution, for example, allows the state to base its determination of its population on “such other basis as the general assembly may direct.” In New York, the legislature “may provide in its discretion for an enumeration by state authorities of the inhabitants of the state” if “the return of a decennial federal census is delayed.” Any such state enumeration, however, would likely confront the same logistical challenges as those now facing the Census Bureau.
If the 2020 Census were so delayed that it became impossible to transmit the data to Congress and the states on the statutory timetable, Congress would need to pass legislation extending the deadlines for reporting the data at each stage.
Just a few weeks ago, that prospect seemed unlikely, with the head of the Bureau’s Public Information Office proclaiming that the agency was “laser-focused on the statute’s Dec. 31 deadline for apportionment counts and population counts.” But on Monday, the Trump administration appeared to change course, asking Congress to extend the deadline for the Bureau to report apportionment counts to the President from December 31, 2020, to April 30, 2021. (Bizarrely, no Census Bureau officials were present on the call where these requests were made.)
These requests, as well as the administration’s announcement that counting might extend into October, followed weeks of advocacy by Democratic lawmakers. Congresswoman Alexandria Ocasio-Cortez (D-N.Y.), for example, recently wrote that “Congress should strongly consider delaying the Census as much as the law allows,” noting that a staggering 85 percent of Democrats and 76 percent of Republicans support extending the census “to ensure an accurate count.” The Congressional Hispanic Caucus has also said it would support “providing emergency funding to the Census Bureau, both for the extended enumeration and expedited tabulation process.”
If Congress does extend the statutory deadlines, a slew of novel election law questions would arise. Reapportionment and redistricting are currently slated to finish in time for the 2022 elections. If census results are delayed until April, states might still be able to redistrict in time to meet that deadline. If an even longer delay becomes necessary, states may simply not be able to complete redistricting in time, which could invite legal challenges.
Regardless of what timetable Congress and the Census Bureau ultimately settle on, the Bureau can still act now to improve the likelihood of a successful count. Getting the count right is all the more important in the midst of a global pandemic, as states will depend on federal health care and emergency aid as they start to rebuild. Recognizing this, the Bureau should redouble its advertising and outreach efforts—which do not require in-person activity—to get as many people to respond to the census questionnaire now, before in-person enumeration is set to begin. And it should keep the public apprised of any substantial changes to its plans for outreach, staffing, and door knocking. As a first step, the Trump administration should allow the Census Bureau’s director to brief members of the House Committee on Oversight and Reform, which it has so far refused to do. The Bureau should also answer questions the Hispanic Caucus has posed regarding how it intends to protect employee safety, how the Bureau is coordinating with local partners, and what steps the Bureau is taking to identify low-responding areas. The American people deserve an accurate count; a decade’s worth of political power and federal funding depend on it.