The Trump administration's plan to ask everyone in America whether they are U.S. citizens as part of the 2020 census could cost California billions of dollars and a seat in Congress, state officials warn.
Whether California and other big, urban states that face similar effects can do anything about it remains to be seen. They are rushing to court to challenge the administration's authority to tack onto the survey a question that hasn't been tested in decades.
California Atty. Gen. Xavier Becerra warned the addition of the question "could translate into several million people not being counted." Legal scholars say California and its allies face a tough fight.
The decision to add a single question on the census, which the administration announced late Monday night, may seem an obscure matter, but it could give the Trump administration another lever to shift power and federal resources away from blue states toward red ones, much as happened with the recent tax law changes that disproportionately favored voters in Republican regions.
The move was met with anger and protest from Democratic lawmakers and civil rights groups. Sen. Dianne Feinstein called it "designed to depress participation in certain communities" and "an assault on the foundations of this country."
Secretary of Commerce Wilbur Ross, whose department oversees the census, made the decision despite a warning from six former Census Bureau directors, who served Republicans and Democrats, that the citizenship question could undermine the credibility of the count and discourage participation.
The census, which takes place every 10 years, hasn't asked every person living in America about citizenship since 1950. That's in large part because of concern that asking the question would discourage not just noncitizens, but also their families from participating.
The result of adding the question could be a significant undercount of the population in states with large numbers of immigrants, such as California. Most of those states have Democratic majorities. Although some Republican states, such as Texas, have large immigrant populations and could be hurt by an undercount, most majority-Republican states have relatively fewer immigrants than the rest of the nation.
The main purpose of the $12.5-billion census effort is to get an accurate count of population for divvying up House seats among the states. The count also drives how the government distributes money from some of its biggest programs, such as Medicaid.
The Constitution provides for an "actual enumeration" of population every 10 years and provides that "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state."
That clause has been interpreted throughout U.S. history as referring to a state's entire population, including both citizens and noncitizens, although some conservatives in recent years have challenged that.
California filed its suit immediately.
"The state of California, in particular, stands to lose if the citizenship question is included," said the complaint filed by Becerra late Monday in federal district court in San Francisco.
"Undercounting the sizable number of Californian noncitizens and their citizen relatives will imperil the State's fair share of congressional seats and Electoral College electors and will cost the state billions of dollars in federal funding over the next decade."
"It is long settled that all persons residing in the United States — citizens and noncitizens alike — must be counted to fulfill the Constitution's 'actual Enumeration' mandate," the complaint said.
The state's prospects for success could hinge not on the broad constitutional question, but on whether courts agree that the new question was added so haphazardly that it threatens to undermine the entire count, legal experts said.
"It is unprecedented to include a major change in the census this close to when the forms are going to go out," said Nathaniel Persily, a Stanford law professor and census scholar. The question would not get the years of vetting that typically go into the survey, he said.
"This is a pretty radical change at a pretty late date," he added.
Kenneth Prewitt, who ran the Census Bureau from 1998 to 2001 and now teaches at Columbia University, agreed.
"We have all kinds of agreements and law about pre-testing questions and submitting them for public comment," he said. "This is just being added without all that."
Making the case that the question is fundamentally unconstitutional, by contrast, could be tough. UC Irvine law professor Rick Hasen said the state will be hard pressed to prove a citizenship question makes an accurate count of all people in the country impossible.
Trump's Department of Justice had asked to have the citizenship question included, saying the information was critical to its enforcement of the Voting Rights Act. The agency said the information was needed to get an accurate tally of the voting populations in regions where violations of the law were alleged.
Democrats challenged that rationale.
"Asking the citizenship question on the census is not critical to enforcing the Voting Rights Act," former U.S. Atty. Gen. Eric H. Holder Jr. said in a statement. "Make no mistake — this decision is motivated purely by politics.
Ross wrote in a letter to his agency Monday that adding the question would enable the federal government to get more accurate data, "which is of greater importance than any adverse effect that may result from people violating their legal duty to respond."
He added that there was no "definitive, empirical support" for the belief that asking about citizenship would discourage people from responding to the census.
White House Press Secretary Sarah Sanders told reporters – inaccurately – that the citizenship question had been part of every census since 1965 and only got removed in the last survey, during the Obama administration. While citizenship questions have been included in other Census Bureau surveys since 1950, they have not been in the full census.
If the question does lead to an undercount, the effects could be profound. The census is used to allocate nearly $700 billion in federal money. As many as 16 states are positioned to either lose or gain a congressional seat, depending on the census results. California could lose even more than one seat if all the immigrants in the state illegally were to opt out of the census.
California has 53 seats in the House, the largest delegation of any state. But it is already at risk of losing one of them to states whose populations have grown faster over the last decade.
The census results also factor into how political districts are drawn within California. The state's population is already one of the most difficult to count, according to the Public Policy institute of California. About 75% of Californians belong to groups that the census historically has undercounted, including Latinos, African Americans and renters.
As lawmakers battled over the Trump administration plan and lawsuits were filed, longtime stewards of the census were disheartened to see the count suddenly engulfed by so much partisanship.
"It has always been above that kind of polarization," said Prewitt. "I worry the census will suffer long-term damage."
Times staff writers Patrick McGreevy in Sacramento and Sarah Wire in Los Angeles contributed to this report.
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2:15 p.m.: This article was updated with additional reaction to the administration's decision and California's lawsuit.