By Patrick R. Potyondy
So why should I give my personal information, such as where I live, to the federal government? And what protections are in place to ensure my information is kept confidential?
For starters, the decennial census is required by the U.S. Constitution. Because of the social contract that lies at the root of this foundational document, and thus our representative democracy, every person is required to answer census questionnaires.
Census data are used for congressional apportionment, redistricting at all levels of government, the allocation of federal funds, and to make decisions by businesses, public officials and lawmakers. It’s important.
And what about confidentiality? Title 13 of the federal code requires census workers to swear a lifetime oath not to share individual-level data with anyone, including law enforcement. Penalties for breaking the confidentiality requirements surrounding census information include up to a $250,000 fine and five years in prison.
Some groups, however, remain skeptical. Some communities of color with a rocky history within the U.S. worry about how the information might be used by government. The confidentiality protections are in federal statute, not enumerated in the Constitution, which means Congress can change them if it chooses. Some civil libertarians, too, are concerned about the government collecting too much information and harbor suspicions about federal agents knocking on their door.
The last-minute decision in March 2018 by Secretary Wilbur Ross of the Commerce Department, which oversees the Census Bureau, to include a citizenship question without any testing has added to concerns about confidentiality and the 2020 Census.
Opposition to the citizenship question crosses the political spectrum. Six previous census directors who served presidents of both parties signed a letter to the Commerce Department arguing against its inclusion. And Census Bureau experts warned about the effects of it on participation in the census, in this eight-page memo from September 2017.
The original request to add the citizenship question came in December 2017 from the U.S. Justice Department, which wants more complete data to enforce provisions of the Voting Rights Act. In a detailed memorandum, Ross explained that his final decision “prioritized the goal of obtaining complete and accurate data.”
And while noting that “the Census Bureau and many stakeholders expressed concern that [including the] citizenship question to the decennial census would negatively impact the response rate for noncitizens,” he concluded that “neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially.”
After the announcement of the inclusion of the citizen question, more than two dozen states, Washington, D.C., several cities, some counties, and the U.S. Conference of Mayors filed lawsuits to stop the citizenship question. California immediately filed its own lawsuit. Meanwhile, at least three attorneys general have come out publicly in support of the question. And some have argued the controversy is blown out of proportion.
All of the furor may be contributing to the dismal percentage of Americans who trust the federal government: now a woeful 18 percent. Distrust of government is nothing new to the nation—after all, a founding principle the U.S. Constitution included checks on governmental power. And census data has been used wrongly and dubiously in the past.
One possible result of both the mistrust in the government generally and uncertainty surrounding the upcoming census? A poor census could, according to a Brooking’s Institution report, “boomerang and hurt red states as well as blue states,” because “some 24.3 million people would have good reason to skip the 2020 Census if they believe their names and addresses could be shared with law enforcement.” People who won’t want to answer include unauthorized immigrants and those who live with immigrants, but also individuals who might owe child-support payments or who are in default on their federal student loans. Finally, because of economic inequalities, undercounting from the 2020 Census may “cut federal funding to the 23 mainly red states with poverty rates above the national average.”
Patrick Potyondy is a Mellon-ACLS public fellow and a legislative policy specialist with NCSL’s Elections and Redistricting Program.