Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
“No,” says a former chief demographer; they would resign before allowing the Trump administration to violate the confidentiality prized by Census Bureau culture.
Amidst news that the U.S. Department of Justice is considering possibly challenging the confidentiality mandate for census data, retired Census Bureau Chief Demographer Howard Hogan wants you to understand the culture among Census Bureau staff. There are three things that bureau staff prioritizes, according to Hogan: accuracy, confidentiality, and nonpartisanship.
Lecturing at the University of Pittsburgh last week on how the census measures race and ethnicity, on the confidentiality question Hogan was, well, confident that this would not be breached.
“We take confidentiality seriously,” said Hogan. “The senior staff at the Census Bureau would resign in protest before they turned over the names. We have perhaps the most sophisticated group of mathematicians and statisticians in the world analyzing how to protect the confidentiality of the data. I'm not going to speak for the administration in question, but as someone who spent 40 years in the Census Bureau, I will speak for our culture: We are still dedicated to protecting everybody's confidentiality period. No exceptions.”
Hogan doubled down on that when CityLab spoke with him after the lecture, but that was last week. That was before NPR national correspondent Hansi Lo Wang exposed an email from the Trump administration revealing that it might consider challenging the confidentiality protections of the Census Bureau. Those protections guarantee by law that no one’s individual data could be turned over to any other federal department or agency, and particularly not for law enforcement purposes.
However, the memo shows, if nothing else, that the current U.S. Justice Department is leaving open the question of whether or not another law, like maybe the Patriot Act, could override those census confidentiality legal protections. The leak of these deliberations comes at a time when the Census Bureau is pushing to include, for the first time since 1950, a question about citizenship, which Commerce Secretary Wilbur Ross announced earlier this year.
There are several lawsuits currently pending to keep Ross from making that happen, with many of the plaintiffs arguing that asking about citizenship would undermine the official census count. Many immigrants, both naturalized and yet-to-be naturalized, would avoid filling out the census, the plaintiffs argue, out of fear that their information could be turned over to law enforcement agencies for deportation or other punitive purposes.
“The Justice Department’s failure to confirm that guarantee is cause for great alarm,” said Vanita Gupta, president and CEO of The Leadership Conference Education Fund in a press statement. “At every turn, the Trump administration has politicized the 2020 census. The addition of Steve Bannon’s unnecessary citizenship question, along with these other fearmongering tactics, is part of a ploy to derail the count.”
Hogan addressed such fears in Pittsburgh mainly by saying that people could skip the citizenship, race, ethnicity, and even the name questions and still get counted for the census. He acknowledged that people are required by law to fill it out completely, but said the Census Bureau had neither the resources nor the desire to enforce something like that.
The Justice Department, which does have enforcement power, though, is another story, and as Gupta indicated there is plenty of reason to believe that some DOJ officials might very well pursue something like that, given the department’s current mission to ferret out people they consider non-citizens. The documents uncovered by NPR’s Wang might be evidence of that. Despite those documents, Hogan doesn’t believe the Justice Department would take that route.
“I would find it inconceivable that [the Justice Department] would have the resources, the inclination, or would want the public relations disaster of arresting someone for not answering [the citizenship] question," said Hogan. “I do know that the leadership of the Census Bureau, the Federal Statistical system, and the American statistical community would all be united against any use of census information for any non-statistical purpose.”
Still, that certain DOJ officials might even be contemplating trying to access census information for non-statistical purposes could be enough to intimidate people, namely newly arrived Americans, out of completing the census, which would have major implications for post-2020 redistricting activities. Congressional, legislative, and even municipal districts are drawn based on census accounts, which is why it is essential that the census data is as accurate as possible. Census data also affects how federal funding is apportioned across political district lines.
People like Ross who support including a citizenship question are claiming they need to do so for Voting Rights Act purposes. However, conservatives have been attempting to use census data as a way to exclude non-citizens in the count to apportion congressional and legislative districts, which is against the Constitution.
In the case Evenwel v. Abbot, plaintiffs tried to argue that districts should only be drawn by counting people who were eligible to vote, primarily by age and citizenship. The U.S. Supreme Court shot that argument down in 2016, however, saying districts may be drawn using total population—including children, the incarcerated, and yes, even non-citizen immigrants—as has been the norm throughout history.
It’s because of such cases that voting rights advocates are suspicious of any motives to include questions about citizenship in the census, especially when using a Voting Rights Act rationale. And the law around who can be counted in redistricting cases and how, is far from settled when considering the many gerrymandering lawsuits that are still pending. Hogan said that the Census Bureau prides itself on being nonpartisan, and he counts the Bureau staying out of redistricting debates as part of that.
"We do not get into political fights and how states do redistricting is strictly politics,” said Hogan. “We leave that to the Department of Justice and to the states. We provide the data and we let them play with it. Each side has their own statisticians that help them. We just say, 'Here's the data and everything we can explain about the data, but how you draw your boundaries is between you and the Department of Justice.’"
However, it seems like the possible misuse of census data that could lead to undercounts or gerrymandering might be one place where the census would want to take a stand—not on partisan grounds, but on grounds of making sure the federal government is simply following the law.