[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
QUESTIONS REGARDING THE U.S. CENSUS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JUNE 8, 2018
__________
Serial No. 115-59
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-965 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin ZOE LOFGREN, California
LAMAR SMITH, Texas SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio STEVE COHEN, Tennessee
DARRELL E. ISSA, California HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho DAVID CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas ERIC SWALWELL, California
DOUG COLLINS, Georgia TED LIEU, California
RON DeSANTIS, Florida JAMIE RASKIN, Maryland
KEN BUCK, Colorado PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas BRAD SCHNEIDER, Illinois
MARTHA ROBY, Alabama VALDEZ VENITA ``VAL'' DEMINGS,
MATT GAETZ, Florida Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
JOHN RUTHERFORD, Florida
KAREN HANDEL, Georgia
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
STEVE KING, Iowa, Chairman
RON DeSANTIS, Florida, Vice-Chairman
LOUIE GOHMERT, Texas STEVE COHEN, Tennessee
KAREN HANDEL, Georgia JAMIE RASKIN, Maryland
THEODORE E. DEUTCH, Florida
C O N T E N T S
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JUNE 8, 2018
OPENING STATEMENTS
Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, Tennessee, Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 4
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 6
The Honorable Jerry Nadler, New York, Ranking Member, Committee
on the Judiciary............................................... 6
WITNESSES
Steve Marshall, Attorney General, Alabama
Oral Statement............................................... 9
J. Christian Adams, President and General Counsel, Public
Interest Legal Foundation
Oral Statement............................................... 11
Dr. Steve Murdock, Professor, Rice University
Oral Statement............................................... 12
Steven Camarota, Director of Research, Center for Immigration
Studies
Oral Statement............................................... 14
Questions for the Record
Dr. Steve Murdock, Professor, Rice University, Response to Questions
for the Record. This material is available at the Committee and can
be accessed on the committee repository at:
https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-
115-JU10-20180608-SD004.pdf
Additional Material Submitted for the Record
Letters Submitted by the Honorable Steve Cohen, Tennessee, Ranking
Member, Subcommittee on the Constitution and Civil Justice. This
material is available at the Committee and can be accessed on the
committee repository at:
https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-
115-JU10-20180608-SD005.pdf
Letters Submitted by the Honorable Steve King, Iowa, Chairman,
Subcommittee on the Constitution and Civil Justice. This material
is available at the Committee and can be accessed on the committee
repository at: Justice
https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-
115-JU10-20180608-SD003.pdf
Law Review Article Submitted by the Honorable Jamie Raskin, Maryland.
This material is available at the Committee and can be accessed on
the committee repository at:
https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-
115-JU10-20180608-SD002.pdf
https://docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-
115-JU10-20180608-SD003.pdf
QUESTIONS REGARDING THE U.S. CENSUS
----------
FRIDAY, JUNE 8, 2018
House of Representatives
Subcommittee on the Constitution and Civil Justice
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 9:07 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve King
[chairman of the subcommittee] presiding.
Present: Representatives King, Goodlatte, DeSantis,
Gohmert, Handel, Cohen, Nadler, and Raskin.
Staff Present: Paul Taylor, Chief Counsel, Subcommittee on
the Constitution and Civil Justice; Jake Glancy, Clerk,
Subcommittee on the Constitution and Civil Justice; James Park,
Minority Chief Counsel, Subcommittee on the Constitution and
Civil Justice; Keenan Keller, Minority Senior Counsel; David
Greengrass, Minority Senior Counsel; and Veronica Eligan,
Minority Professional Staff Member.
Mr. King. The Subcommittee on the Constitution and Civil
Justice will come to order.
Without objection, the chair is authorized to declare a
recess of the committee at any time.
We welcome everyone to today's hearing on the subject
matter of ``Questions Regarding the U.S. Census,'' and I now
recognize myself for an opening statement.
Our hearing today will allow Members of Congress and the
general public to examine the constitutional options the
Federal Government has in determining how the decennial census
is conducted and used, especially with regard to people who
aren't in the country legally.
The current policy under which illegal aliens are counted
in the census and included in the formula for geographically
allocating Members of the U.S. House of Representatives allows
areas with many illegal aliens to elect more Federal and State
Representatives than areas with higher populations of citizens
and lawful residents but few illegal aliens.
Since there are only 435 U.S. House Members, providing
additional Representatives for areas in the country with many
illegal aliens will leave other parts of the country inhabited
by a relatively smaller number of illegal aliens with fewer
Representatives.
Further, congressional districts with many illegal aliens
will have fewer citizens casting votes for their
Representatives, thereby granting citizen voters in districts
with many illegal aliens more influence in selecting a
Representative.
Also, legislators from areas that benefit from increased
representation because of a disproportionate number of illegal
aliens may be incentivized to support policies that encourage
such aliens to come to and continue to stay in America, even
when the policy preferences of illegal aliens may be very
different from those of citizens and legal immigrants. Such
legislators may also be incentivized to ignore immigration
violations or refuse to cooperate with Federal immigration law
enforcement.
The controlling language in section 2 of the 14th Amendment
states that, quote, ``Representatives shall be apportioned
among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding
Indians not taxed,'' close quote.
The phrase ``counting the whole number of persons in each
State'' makes clear the census envisioned by the 14th Amendment
was intended to count former slaves as entire persons, as
distinguished from the original Constitution, which provided
that only three-fifths of the number of slaves would be counted
for purposes of apportionment.
The phrase ``excluding Indians not taxed'' refers to the
exclusion from census counting of Indians that could not be
taxed by State or Federal governments because they were members
of sovereign Indian nations.
Finally, the words ``their respective numbers,'' in the
context of the census' purpose of determining relative State
population totals that will be the basis for apportioning
Representatives for the subsequent decade, makes reasonably
clear that the persons to be counted should have some
meaningful connection to the State that has the significant
potential to last through the decade to come--in other words,
an expectation that they would be residents within that
district, at least the potential that they would be residents
there for the decade to come.
Consistent with this view, the Census Bureau has never
attempted to count every person physically present in a State
during the census and has excluded tourists and other short-
term visitors and many other categories of people.
The Bureau's own application for its ``usual residence''
standard has changed over the years, recognizing the
determination of whether particular persons should be counted
as part of a State's respective number is not an automatic
process but one that requires a reasonable judgment as to
whether persons have a sufficient connection to a particular
State such that their principal residence is in the State and
has some minimum likelihood of a continuance there.
And regarding illegal aliens, there can be no legal
residing if one is subject to deportation at any time in the
near term.
The understanding of the Framers of the original census
provision of 1789 was that apportionment would be based on the
relative number of inhabitants in the States. The drafts of the
apportionment provision, including the version initially
approved by the Constitutional Convention, used the term
``inhabitants'' rather than ``persons.''
The committee on style, which is exactly what it sounds
like, the committee on style or style of language, which was
not authorized to make substantive changes to submitted
provisions, replaced the phrase ``citizens''--replaced the
phrase with which they used, which was ``citizens and
inhabitants of every age, sex, and condition.'' That phrase was
replaced with a single word, ``persons,'' by the committee on
style. And that was in the description of how the States'
numbers were counted. But the historical evidence does not
indicate that this stylistic change was intended to alter the
meaning of the census provision.
Indeed, in ``The Federalist Papers,'' James Madison, the
highest authority, I might point out, who himself was a member
of the committee on style, described the meaning of the terms
of the Constitution as it would be ratified as followed, quote:
``It is a fundamental principle of the proposed Constitution
that the aggregate number of Representatives allotted to the
several States is to be determined by a Federal rule founded on
the aggregate number of inhabitants.''
In the same ``Federalist Papers''--and that is close quote.
In the same ``Federalist Papers,'' Madison wrote, quote,
``Within every successive term of 10 years, a census of
inhabitants is to be repeated,'' close quote.
So he references strongly of ``inhabitants'' and the
definition of ``inhabitants'' rather than the stylistic change
to ``persons.'' And the original census statute enacted by
Members of Congress, including members of the Constitutional
Convention, refers to ``inhabitants'' as the subject of the
census and the basis of apportionment.
The Constitution grants authority to Congress to exercise
its discretion in determining who meets the habitation
requirements for purposes of the census. Under the
Constitution, Congress may direct, by law, the manner in which
the census is conducted and enforce provisions of the 14th
Amendment. Of course, in doing so, Congress may not usurp the
Constitution.
Federal statutory authority also already provides that the
Secretary of Commerce, under 13 U.S.C. 141(a), quote, ``shall
take a decennial census of population in such form and content
as he may determine,'' close quote. But, again, the Secretary
of Commerce may not usurp the Constitution.
I would challenge Congress and the administration to
consider whether the residence rule conforms to the original
meaning of the Constitution. And I am encouraged that the Trump
administration has made the decision to include a citizenship
question on the 2020 census.
I hope we can continue working toward a 2020 census that
accurately represents the American people. I look forward to
hearing from all our witnesses today in examining with them how
Congress and the Federal Government can use its constitutional
authority to protect the sanctity of the votes of American
citizens.
Finally, I would like to note that I have introduced two
pieces of legislation to that end--namely, the Census Accuracy
Act, which would allow the American people more information
regarding unlawful presence in the United States, and the Libby
Schaaf Act, H.R. 5884, which would punish obstruction of law
enforcement by State and local officials.
That concludes my opening statement, and I now recognize
the ranking member, Mr. Cohen, for his opening statement.
Mr. Cohen. Thank you, Mr. Chair.
The Founders considered an accurate count of our Nation's
population to be of such central importance to democratic
government that they placed a requirement for census in Article
I of the Constitution.
Specifically, Article I, section 2, as amended by the 14th
Amendment, requires that, quote, ``an actual enumeration,''
unquote, of the whole number of persons in each State be
conducted every 10 years for the purpose of apportioning
Representatives among the several States.
In addition to being used for apportionment, the census can
aid our use for redistricting for State legislative districts,
determine the distribution of Federal funds, and estimate
population sizes between censuses. And, of course, it also
results in the number of electors you have in the Electoral
College and a way to elect a President that is in our
constitutional system that does not consider the popular vote.
State and local governments, businesses, and nonprofit
organizations also use census data to inform their own
decisions.
Yet the ability to meet the mandate of an actual
enumeration of the whole number of persons in each State is
under threat from this administration.
On the 26th of March, Secretary of Commerce Wilbur Ross
issued a memorandum directing that a question asking about
citizenship be added to the 2020 decennial census
questionnaire. Such a question has not been on a decennial
census in almost 70 years, and when it was, it was a time of
great, great immigration in our country.
Adding such a question raises the serious risk of
depressing the response rates of immigrants and other minority
communities, leading to an undercount of their numbers.
All we have to do is look to Bean Station, Tennessee, near
Morristown, where a raid was conducted and many, many
immigrants were arrested for no reason whatsoever. The raid was
under the auspices and the theory that it was going after the
company for IRS violations. Nobody at the company was arrested
or charged, but 100 or so people were taken and removed from
their homes.
This has put immigrant populations under fear of even going
to work. And that is part of what this administration is doing,
and that is what would happen with this census--fear of being
located and deported and separated from your family. Indeed,
that is what we see. And the impact could be devastating for
States and cities with large numbers of such communities, in
terms of losing their fair share of congressional seats,
Electoral College votes, and Federal funding. What we're
talking about here is simply power, and power to try to go to
States that don't have as many immigrants.
It is no wonder, therefore, that at least six lawsuits have
been filed by States, cities, advocacy groups, and individual
citizens to challenge the legality of this administration's
decision to add a citizenship question.
According to the administration, a citizenship question is
necessary to help enforce section 2 of the Voting Rights Act.
That's hard to fathom, but that's what they say. This assertion
seems like a thinly veiled pretext to exclude immigrants and
racial minorities from being counted, literally and
figuratively.
The real problem with voting rights enforcement is not the
lack of a citizenship question on a census form; rather, that 5
years ago the Supreme Court in Shelby County of Alabama v.
Holder eviscerated the most important enforcement mechanism of
the Voting Rights Act when it struck the act's coverage formula
and effectively gutted its preclearance requirement.
If the administration truly wanted to strengthen
enforcement of the Voting Rights Act, it would push legislation
to address the Shelby County decision and restore the Voting
Rights Act to its full effectiveness. Yet they have not done
that.
The same States that had to have preclearance, almost to a
one, are in the South. They are also the States that most
likely are to be seen restricting people's voting rights and
making laws that say you have to present an ID, but not a
college ID, or they move voting places, or they change all
kinds of things to make it harder to vote. They appreciate
minorities very much in those States--when they play football.
But when they don't play football and they want to vote,
they're not appreciated at all.
Instead, it chose to add a census question that was not
added through the usual years-long, exhaustive, and thorough
vetting process, which could lead to an inaccurate count and
the dire consequences that would flow from such an undercount.
Indeed, this is why six former Census Bureau Directors
under both Republican and Democratic administrations, including
Dr. Steve Murdock, who is our witness on the Democratic side
today, have publicly opposed the addition of a citizenship
question to the 2020 census.
It is also no answer to say that the census does not or
should not include a count of undocumented immigrants. The
plain meaning of the Constitution's text is clear: The census
must count, quote, ``the whole number of persons,'' unquote.
Had the Constitution's drafters intended to limit the census
count to citizens or exclude certain noncitizens, they could
have done so, yet they did not. Mr. Madison may have said
something in ``The Federalist Papers,'' but it wasn't put in
the Constitution.
Finally, we must remember that the decision to add a
citizenship question to the census did not happen in a vacuum.
Rather, it is part of a disturbing pattern of demonization and
dehumanization of immigrants and other people of color in this
country.
Throughout his Presidential campaign and after he assumed
office, President Trump has repeatedly used hostile rhetoric
toward nonwhite immigrant communities and imposed cruel,
heartless, and unjustified policies like separating children
from families at the border--which he claims is a Democrat bill
that he is following, which is a lie, the big ``L'' word that
comes from the President--and banning people from certain
Muslim-majority countries. And if it wasn't a lie, he could
just put in the bill, suggest the bill, and I'm sure his
acolytes would pass it.
And in so doing, he has engaged in a nauseating flirtation
with white nationalists and their belief that America is a
country for whites only. Such bigotry should have no place in
American life. Yet here we see only the latest example of this
President's continuing dog whistle towards the darkest forces
in our society.
We saw it in Charlottesville, and it sickened me--it
sickened me--to say that there were fine people on both sides.
There were not fine people on the sides of the Ku Klux Klan or
the neo-Nazis. There never were, there never will be, and
they're a threat to America as we know it and we believe it
should be.
Adding an unvetted citizenship question to the census will
not only undermine the Constitution's mandate of an actual
enumeration of the whole number of persons but will only
further exacerbate the already substantial mistrust between
immigrant and minority communities and the government and only
further serve to alienate and exclude already marginalized and
abused communities. This is exactly the wrong thing to do and
the wrong direction for America to go.
I yield back the balance of my time.
Mr. King. The gentleman returns his time.
The chair will now recognize the chairman of the full
committee, Mr. Goodlatte of Virginia.
Chairman Goodlatte. Thank you, Mr. Chairman.
I'm pleased the subcommittee is examining today the role
the U.S. Census can play in giving us a better picture of our
Nation's composition.
In particular, getting better information regarding the
citizen and noncitizen population of our country has
significant implications for the fair and accurate enforcement
of the Voting Rights Act, the distribution of Members of the
House of Representatives in the apportionment process, and in
providing for equal voting power among qualified voters.
I welcome the attorney general of Alabama here today and
all of our other witnesses and look forward to their testimony.
Mr. King. The chairman returns his time.
And the chair would now recognize the ranking member of the
full committee, Mr. Nadler of New York, for his opening
statement.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, for the first time since 1950, the census
questionnaire in 2020, at the request of the Justice
Department, will ask respondents whether or not they are U.S.
citizens. As one of our witnesses, Dr. Steve Murdock, will
explain, without thorough testing and analysis, the effects of
adding a citizenship question are unknown and open to an array
of dangerous consequences.
We know, for example, that this new policy is, in essence,
as the ACLU warns, quote, ``a door-to-door government inquiry
as to the citizenship status of every member of every household
in the United States,'' close quote. This, it argues, will
dramatically reduce participation by immigrant communities,
stunting their political influence and depriving them of
economic benefits.
I share these concerns, as do several leading organizations
committed to upholding civil rights and protecting the
interests of immigrants, as well as various State and local
government entities.
To date, at least six lawsuits have been filed against the
Trump administration challenging the legality of adding this
query to the 2020 census questionnaire, including one filed by
my own State of New York, along with several other States and
localities.
In addition, more than 100 of our colleagues in Congress
have signed on to letters expressing their concern that an
untested citizenship question may compromise preparations for
the 2020 census and could jeopardize the accuracy of the count
in all communities.
Further, six former Census Directors from both Democratic
and Republican administrations oppose this change, including
Dr. Murdock.
Yet, in service of a narrow political agenda, the Trump
administration believes it knows better. Or perhaps it doesn't
believe it knows better, but it wants to do it anyway. From its
earliest days to the present, the administration has
relentlessly pushed an anti-immigrant agenda. It has blatantly
disregarded civil rights protections, as evidenced by its
continuous efforts to roll back civil rights enforcement.
And any statements that this is intended to aid civil
rights enforcement from an administration that has done
everything possible to sabotage civil rights enforcement is the
most obvious hypocrisy. Yet the Justice Department now seeks to
use its supposed interest in protecting civil rights to justify
this change to the census questionnaire.
I find the Department's purported justification for
resisting this change--namely, that it is critical to its
enforcement of section 2 of the Voting Rights Act and its
important protections against racial discrimination in voting--
to be not only disingenuous and hypocritical but offensive.
Such justification appears to be no more than a thinly veiled
smokescreen for the political motivations behind this costly
and terrible decision.
The Constitution, as amended by the 14th Amendment,
provides that ``Representatives shall be apportioned among the
several States which may be included within this Union,
according to their respective numbers, counting the whole
number of persons in each State,'' unquote.
And, contrary to the chairman, I don't think the change by
the committee on style from ``inhabitants''' to ``persons'''
changes anything at all. ``Inhabitant'' means everybody who
inhabits, who lives there.
Clearly, this mandate is intended to ensure that all
individuals are counted regardless of their citizenship status.
Thus, changes to our Nation's census process that may have the
effect, either intentionally or unintentionally, of diminishing
the number of people counted, particularly when it targets one
category of people, must not be taken lightly.
Allowing political considerations to taint census-related
decisions that should be driven strictly by scientific
considerations and quality standards does a disservice to an
agency with a proud tradition of scientific excellence and
independence.
Hopefully we can learn a lesson from history. At the time
of the first census in 1790, some of our most influential
constitutional Framers were directly involved in overseeing the
effort, with Representative James Madison of Virginia
reportedly recommending at least five of the initial six
questions and Secretary of State Thomas Jefferson supervising
the overall effort.
Subsequently, there was controversy about the results, with
both George Washington and Thomas Jefferson expressing
skepticism over the final count because they expected a number
exceeding the 3.9 million inhabitants found in the enumeration.
Like our Founders, I believe our primary constitutional
duty is to ensure that no one is left out of the census. An
accurate count is one of the most important civil rights issues
to come before this subcommittee. Not only is it central to
apportioning political power at every level of our
representative form of government, but the data collected also
influences the allocation of more than $800 billion in Federal
funds every year, along with countless policy and investment
decisions by government agencies and private entities.
Mr. Chairman, the conduct of the decennial census was never
supposed to be a political function. The Constitution mandates
the count of every person in the United States in order to
apportion seats in the House of Representatives among the
States. Since 1790, every census has included citizens and
noncitizens alike. Though the census has political
consequences, the conduct of the census must be strictly
nonpartisan and nonpolitical.
I do agree that robust oversight is necessary to protect
the integrity of the census process and accuracy of the
results. Accordingly, I thank the chairman for holding this
hearing, and I look forward to hearing our witnesses today.
That concludes my prepared statement, but let me just add a
couple of remarks.
I believe that this change in the census, the inclusion of
this, is done in bad faith. It is not done with the real
purpose of helping civil rights or anything else. Its intent is
to frighten people in immigrant communities from participating
in the census. Its intent is to prevent not only undocumented
people but perfectly documented immigrants, families of
immigrants, citizens, from participating. They want to short-
count immigrant communities.
At least the chairman of the committee is truthful and
forthright about his intent, but the administration is
hypocritical about its intent. It is attempting to deliberately
sabotage the census for raw, partisan, political purposes. It
is attempting to discriminate against immigrant communities,
citizens and noncitizens alike. Its conduct is disgusting,
immoral, and hypocritical. And it must be overturned, even if
that means that they do a bad census and we have to do another
one 2 or 3 years later.
I yield back.
Mr. King. The gentleman's time has expired.
And I thank the gentleman.
Without objection, other members' opening statements will
be made part of the record.
And our first witness is Steve Marshall, the attorney
general of Alabama. And the second witness is J. Christian
Adams, the president and general counsel of the Public Interest
Legal Foundation. Our third witness is Dr. Steve Murdock, a
former Census Bureau Director and currently professor of
sociology at Rice University. And our fourth and final witness
is Dr. Steve Camarota, the director of research for the Center
for Immigration Studies.
The light will switch from green to yellow, indicating that
you have 1 minute to conclude your testimony. When the light
turns red, it indicates the witness's 5 minutes have expired,
and we hope you can summarize your testimony some time near
that point.
Before I recognize the witnesses, it's a tradition of this
subcommittee that they be sworn in. So please stand.
Do you swear that the testimony you are about to give
before this committee is the truth, the whole truth, and
nothing but the truth, so help you God?
Thank you. You may be seated.
Let the record reflect that all the witnesses responded in
the affirmative.
And I now recognize General Marshall for your testimony.
Mr. General Marshall.
TESTIMONY OF STEVE MARSHALL, ATTORNEY GENERAL, ALABAMA; J.
CHRISTIAN ADAMS, PRESIDENT AND GENERAL COUNSEL, PUBLIC INTEREST
LEGAL FOUNDATION; STEVE MURDOCK, FORMER DIRECTOR, U.S. CENSUS
BUREAU, PROFESSOR, RICE UNIVERSITY; AND STEVEN CAMAROTA,
DIRECTOR OF RESEARCH, CENTER FOR IMMIGRATION STUDIES
TESTIMONY OF STEVE MARSHALL
Mr. Marshall. Chairman King, thank you. Ranking Member
Cohen and distinguished members of this body, I'm honored to
appear before you today and appreciate your invitation to
discuss specifically the implementation of the proposed
residence rule of the 2020 census.
Last month, the State of Alabama filed a lawsuit in Federal
court challenging our expected loss of representation in
Congress and in the Electoral College as a result of the Census
Bureau's counting of illegal aliens for purposes of
apportionment.
As stated in our complaint and as joined by Congressman Mo
Brooks, who is here with us today, Alabama is set to lose one
of its seven congressional seats and one of its nine electoral
votes--a seat and a vote it would not lose if illegal aliens
were excluded from the apportionment base.
Not only would this skewed result rob the State of Alabama
and its legal residents of the rightful share of
representation, but it plainly undermines the rule of law. If
an individual's presence in our country is in violation of
Federal law, the question is, why should the States in which
they reside benefit from their illegal status?
On February 8, 2018, the U.S. Census Bureau promulgated the
residence rule governing the implementation of the 2020 census.
To be counted in the census, a person must meet the Census
Bureau's ``usual residence'' definition--that is, anyone who
has a U.S. residence where they live and sleep most of the
time.
The rule explicitly requires that citizens of foreign
countries be counted toward the population of their resident
State, a population total used to calculate the number of
Representatives and electoral votes each State receives,
regardless of whether they are here legally.
If the rule is implemented, States with illegal alien
populations risk losing representation in the U.S. House of
Representatives and votes in the Electoral College to States
with higher illegal alien populations.
According to an expert hired by our office, much like
Alabama, Ohio is likely to lose a congressional seat and an
electoral vote. Montana will not gain a congressional seat and
electoral vote it would have otherwise gained. To the contrary,
both Arizona and Texas will likely gain one congressional seat
and one electoral vote. California is expected to keep one
congressional seat and electoral vote that it would not have
otherwise if illegal aliens had not been counted for the
purposes of apportionment.
I should note that the 2020 would not be the first time
that illegally present foreign nationals were counted in the
decennial census. In previous censuses, the Census Bureau has
failed to exclude illegal aliens from the population counts of
each State. Thus, it is critical for action to be taken to
resolve this issue.
In 2010, for example, Louisiana, Missouri, and Ohio each
lost one seat in the House and one vote in the Electoral
College. Montana failed to gain a seat and electoral vote it
would have gained had illegal aliens been excluded from the
apportionment base. By contrast, California gained two seats
and an electoral vote that it would not have acquired if
illegal aliens had been excluded from the apportionment base.
The reapportionment of House seats and electoral votes is a
zero-sum proposition. One State's gain is another State's loss.
Illegal immigration impacts the distribution of seats in the
House of Representatives and the Electoral College because the
United States illegal population is both large and highly
concentrated. Thus, the practice of including illegal aliens in
the census has repeatedly resulted in the unlawful distribution
of additional House seats and electoral votes to States with
high numbers of illegal aliens from States with low numbers of
illegal aliens, robbing those States and their citizens of
their rightful share of representation and political power.
Further, this creates a potential disincentive for States
with large illegal alien populations to cooperate with Federal
immigration authorities seeking to enforce the laws that
Congress has enacted.
The irony, of course, is that illegal aliens cannot vote;
therefore, they are not the ones who gain from being included
in the apportionment base. In a State in which a large share of
the population cannot vote, those who do vote count more than
those who live in States where a larger share of the population
is made up of U.S. citizens. In these States, Representatives
and electors will represent a smaller number of constituents
than their counterparts in States with lower numbers of illegal
aliens.
Large illegal alien populations indisputably redistribute
power from Americans living in States comprised mostly of U.S.
citizens and permanent legal residents and give it to others
who live in States with larger illegal alien populations
compromising the right of equal representation.
We are not without recourse, and we have chosen to be
proactive on this issue. The State of Alabama's lawsuit asked
the court to declare the residence rule unlawful. We assert
that apportionment of the House of Representatives and the
Electoral College based on census data that counts illegal
aliens in the population figures is unconstitutional because it
violates the principle of equal representation.
I see that my time is about to expire. I will yield for
questions at a later time.
Thank you, Mr. Chairman.
Mr. King. This chair thanks General Marshall for his
testimony and now recognizes Mr. Christian Adams for his
testimony.
TESTIMONY OF J. CHRISTIAN ADAMS
Mr. Adams. Thank you, Chairman King, Ranking Member Cohen,
and members of the subcommittee.
My name is Christian Adams. I am president and general
counsel of the Public Interest Legal Foundation and also served
as an attorney in the Voting Section of the Department of
Justice. I brought multiple enforcement actions under the
Voting Rights Act and have since brought dozens of cases
relying on census population data.
The Trump administration's decision to include a
citizenship question in the 2020 census is the right decision.
Justice Department officials charged with enforcing the Voting
Rights Act will enjoy more precise citizen population data and,
thus, enhance the enforcement of civil rights laws. A census
that collects robust citizenship data will also give
policymakers the chance to curb the real everyday foreign
influences in our election.
Having access to robust citizenship data will be extremely
useful at the Justice Department. Without robust citizenship
data, ambiguities and conjecture can impair enforcement of the
Voting Rights Act. It should not be acceptable to overlook
small jurisdictions for Voting Rights Act enforcement, but that
is precisely what has happened over the years without robust
and precise citizenship data.
Consider the case of Lake Park, Florida, a small town in
Palm Beach County. The record will establish that I was one of
the lawyers who signed the Voting Rights Act complaint in the
case of United States v. Town of Lake Park.
In the 2000 census, 48 percent of Lake Park residents were
African American, but in 2009 not a single black candidate for
town council had ever won a seat. A large noncitizen Haitian
population, however, made it less clear what the precise
African-American citizenship population was in Lake Park.
Remember, the Department may not bring a section 2 case
unless a district may be drawn where minority citizens comprise
a compact majority. Yet one could not turn to the census in
2009 for precise citizenship data because precise citizenship
data were not collected in the 2000 census.
Voting Rights Act enforcers without robust citizenship data
will necessarily operate in a degree of statistical fog.
While it is true that the United States alleged that Lake
Park contained a sufficiently large black citizenship
population to justify the case, the extraordinarily large black
population, more than 40 percent, made that an easier assertion
to make. Nonetheless, it was impossible to know the precise
level of citizenship in Lake Park.
Now, some have attacked President Trump's decision to
collect precise, robust citizenship data and question the
justifications for that improvement made by Acting Assistant
Attorney General John Gore. As I have shown in the Lake Park
case, those critics are flat-wrong. Collecting robust
citizenship data will aid enforcement of the Voting Rights Act.
If you simply look at the Voting Rights Act complaints
filed in section 2 cases, which I detail in great length in my
written testimony, you will see over and over again the
Department relies on citizenship data. If you look at United
States v. Euclid School Board, the complaint relies on
citizenship estimates.
A particularly revealing case is United States v. The
School Board of Osceola County, a case in Florida from about 14
years ago. In that case, the Department made an allegation in
the complaint that a majority of citizen voting-age population
in one illustrative district could be drawn for minorities.
They made the specific allegation of citizen voting-age
population. But the truth is that the Department did not enjoy
access to that data because it did not exist. They had to use
estimates as opposed to precise data.
I talk about a South Carolina case that I worked on, United
States v. Georgetown County School Board, and other cases. You
can read the complaints yourself--United States v. City of
Boston, United States v. Osceola County, and on and on and on.
It is simply wrong to claim that enhanced robust
citizenship data would not aid enforcement of the Voting Rights
Act. Correctly ascertaining the citizenship populations,
particularly in areas where the racial minority has sizable
numbers of noncitizens distributed throughout the geographic
area, would greatly aid Justice Department staff in correctly
and precisely enforcing the Voting Rights Act.
Thank you, Mr. Chairman.
Mr. King. Thank you, Mr. Adams.
The chair now recognizes Dr. Murdock for 5 minutes.
Dr. Murdock.
TESTIMONY OF STEVE MURDOCK
Mr. Murdock. Thank you for the opportunity to be here. I
appreciate having been----
Mr. King. Could you pull that microphone a little closer?
Mr. Murdock. Sorry. I appreciate having the opportunity to
speak to you today.
Let me tell you a little bit about my background. I
previously served as Director of the U.S. Census Bureau under
George W. Bush and as State demographer of Texas, having been
appointed to that position by Governor Rick Perry. I have,
therefore, worked for both Republicans and Democrats, in terms
of doing demographic analysis.
I have also served as a faculty member at Rice University
and several other universities. And for more than 35 years, I
have performed substantive analyses of how demographic and
socioeconomic change impact the forms and types of development
in rural and urban communities.
I understand that the proposals you are discussing today
are the subject both of litigation and legislation, so let me
state the obvious: I am neither a lawyer nor a legal scholar.
Therefore, I cannot offer an informed opinion on the intent of
the Founding Fathers or subsequent legislators with respect to
the meaning of the U.S. Constitution's original census clause.
I can assure you, based on my and many other demographers'
experience, the Census Bureau follows the guidance of the U.S.
Department of Justice, as well as its own counsel, with respect
to whom it should include in the Nation's constitutionally
required decennial enumeration of the population. In other
words, the Census Bureau follows the requirements set out by
law, in terms of performing its duties.
The Justice Department reaffirmed the position of the
Census Bureau in 1989 and was part of the oversight--and was
dealt with by the oversight subcommittee during the
administration of President George H.W. Bush.
I and many other scholars and officials using census data
have concerns related to the implementation of the census and
the factors you may want to weigh as you consider proposals
that directly or indirectly require the Census Bureau to
include questions on citizenship and immigration status on the
decennial form.
The inclusion of such questions may adversely affect the
accuracy of census data and, thus, their utility for
apportioning seats in the U.S. House of Representatives among
the 50 States and for developing the boundaries of House
districts within States. Such questions should not be included
in the census until they have been thoroughly tested, including
field testing.
Beyond the fundamental uses for redistricting, as all of
you know, census data help guide the prudent distribution of
many billions of dollars in Federal and State assistance to
local communities, guiding their expenditures for healthcare,
education, rural hospitals, infrastructure, et cetera.
Civic and business leaders rely on accurate data from the
census and other data sets for which the census provides
baseline data to attract and retain vital businesses and the
investments that they involve. In addition, businesses use
census information to guide such decisions as where to locate
plants and stores, et cetera.
In fact, when I served as State demographer, I received
many requests for data that could be readily obtained, directly
or indirectly, from the census to inform the work of State
agencies as well as private-sector entities.
I recognize the delicate balance that must be achieved to
ensure that all those residing in the United States are
included in determining the demographic base for the proportion
of House seats. Thus, despite the fact that data apparently
have been successfully collected on citizen status for some
purposes, I am concerned about how the inclusion of questions
that directly solicit information on citizenship and
immigration and legal status from every person residing in the
Nation will affect the completeness of the census count for the
primary constitutional purpose of the census: the distribution
of House seats among the States. At the same time, State and
local agencies and planners, et cetera, are using such data
effectively.
Preparations for the census are complex. We know that
they're involved in a number of dress rehearsals at the present
time. But I think most people--and I was among those six Census
Directors that signed the letter referred to earlier--believe
that adding untested questions on citizenship and immigration
status at this point in the decennial planning process would
put the accuracy of the enumeration and success of the census
in all communities at risk.
While the ongoing American Community Survey and earlier
surveys have included a question on citizenship, data
collection for all census areas have not included such a
question since 1950, a very different time in terms of our
Nation's history.
Mr. King. Thank you, Dr. Murdock.
And now the chair would welcome back to the committee and
recognize Dr. Camarota for his 5 minutes of testimony.
TESTIMONY OF STEVEN CAMAROTA
Mr. Camarota. As the chairman said, my name is Steven
Camarota. I am director of research at the Center for
Immigration Studies. And I would like to thank the committee
for allowing me to testify today.
Now, in my oral testimony, I would like to emphasize just
three points: First, it has been the norm to ask a citizenship
or related question in prior decennial censuses; second, there
is value in doing so; and, third, at present, there is no
evidence that reinstating this question on the census would
reduce response rates.
Let me begin with just a little bit of history. From 1820
to 1950, except for 1840, the decennial census included at
least one question on citizenship or place of birth.
Immigrants, of course, can be identified, then, from the
country of birth they report. From 1960 to 2000, a question on
citizenship or place of birth was asked to a subset of the
population, roughly 10 million to 17 million households, taking
part in the census.
Other than 1840, the 2010 census was the first time since
1820 that neither data on citizenship nor country of birth was
collected in the decennial census for at least some share of
respondents. In short, there is nothing unusual about asking
about citizenship or related questions in the census.
Second, there is value in doing this. The Census Bureau, in
its memorandum outlining its reasons, pointed out that it would
be very helpful in enforcing the Voting Rights Act. Now, I
would like to add that, from the perspective of a researcher,
it would be very helpful to have this information.
Some may think that because we already ask citizenship in
other surveys administered by the Bureau that we don't need to
do it in the census. But in my many years working as a
contractor for the Census Bureau evaluating the citizenship
data in the American Community Survey, it was always
challenging to find ways to measure the actual accuracy of that
question. Then, as now, there is no definitive government data
on the number of citizens residing in the United States that we
could ever compare the survey results to. A citizenship
question on the census would certainly provide much useful
information in that regard.
Now, my third point is that, while some may have expressed
concern that adding the question back into the census may
reduce response rate, at present there is no evidence that this
would happen. There's just a concern. The argument is that,
while citizenship was asked in many past censuses and is asked
in many ongoing Census Bureau surveys, the candidacy and
election of Donald Trump may have changed things. In
particular, the idea is that stepped-up enforcement has created
what might be called a Trump effect. That's my word.
It is true that the Center for Survey Measurement, part of
the Census Bureau, did conduct some interviews and focus groups
with field representatives and respondents on this potential
problem and found that there was heightened concern that the
enforcement of immigration laws may be affecting people's
willingness to take part in government surveys. However, the
Census Bureau, when it put that data out, it said that the
survey was very small and it was unrepresentative--their words.
So it's hard to know what, exactly, to make of it.
But we can, actually, get some idea of whether collecting
citizenship data has become uniquely problematic, particularly
in the Trump era. I discuss this more in my written testimony,
but we can look at this question by first looking at the
refusal rates right now on the Census Bureau's American
Community Survey. It asks about citizenship. And it is true
that there has been an increase in the share of people refusing
to take part in that survey since 2005. But that increase began
well before President Trump threw his hat into the ring.
Moreover, the rates have not gone up faster in high-immigration
States. So if refusal had something to do with immigration
status, we would expect that to be the case, but it isn't.
We can also look at the Census Bureau's Current Population
Survey, which also asks about citizenship and is collected each
month. There has been no noticeable shift in the number of
people who identify as immigrants from June 2015, when Trump
threw his hat into the ring, to January of this year.
We can even dive a little deeper into that survey and look
at those joining the survey each month for the first time, this
so-called incoming rotation group. There has been no noticeable
increase in what is called allocation rates on the citizenship
question through January of this year. In other words, people
coming into the survey have not been refusing to say whether
they're citizens or not at any higher rates. And we have data
through the first part of this year.
In sum, neither the CPS or ACS indicate that collecting
citizenship data has become more difficult in the era of Donald
Trump.
In sum, asking a question on citizenship or place of birth
has been the norm; doing so, second, has value; and, third, at
present, there is no evidence that reinstating the question
would actually impact response rates.
Thank you.
Mr. King. That concludes the witnesses' testimony. And now
the chair will recognize himself for his 5 minutes of
questioning.
And I thank you all for your testimony here.
Dr. Camarota, I was just thinking about some of the
testimony maybe 10 years ago or so on this same topic that you
delivered. It seems to me that in that testimony--and I didn't
check this for 10 years, so--but it seems me that your
testimony was that if we counted citizens rather than persons
the reapportionment would result in between 9 and 11
congressional seats shifting from States like Florida, Texas,
California to States like Utah and Indiana at that time.
Do you recall that testimony, and does that fit your
perspective today?
Mr. Camarota. Yes. Remember, there are about 20 million
noncitizens living in the United States. In the census, we
would expect about 10 million illegal immigrants to show up and
about 10 million persons here legally in various statuses,
mostly green cards. So that 20 million looks like it would
still redistribute somewhere between 9 and 11 million seats in
the House of Representatives.
Mr. King. Nine to 11 seats.
Mr. Camarota. Seats, right, that would change hands.
Mr. King. Okay. Thank you. I appreciate that, Dr. Camarota.
I would like to turn to Attorney General Steve Marshall.
And what I didn't hear in this testimony from anybody on this
panel is, what should it look like if this country were
functioning properly and appropriately? What would be the
configuration of our electoral laws in the country?
And if we're going to try to get to the ideal--I would
always like to see what's the pattern that we'd like to reach
here and get our country fixed so it's functioning correctly.
What would that America look like within the context of this
electoral law that we have?
Mr. Marshall. Mr. Chairman, I can say from my perspective--
and this is somebody that's a prosecutor. You know, I'm not a
policymaker. But I believe in the rule of law. And that means
that we enforce our laws equally across the spectrum of
immigration so that we don't create in this situation an
incentive for sanctuary cities or for certain localities to not
enforce our immigration laws and that we adhere to the
Constitution and that we allow for that Constitution to be
implemented and interpreted as our Framers intended.
And so the nature of our lawsuit, a little bit different
than some of the testimony you've heard here, is specifically
about those who will be counted for purpose of congressional
apportionment. And the reason why we are advocating against the
residency rule that exists right now is that, currently, that
information that we need to believe that the residency rule
should be done and adopted as intended, that information is not
being collected. And although there were comments provided to
the Census Bureau when the residence rule was adopted, those
comments were never addressed specifically relating to what we
have alleged here.
And so our opportunity, specifically, is to put in front of
a Federal judge this claim to seek relief and then allow for
that judge to be able to fashion a remedy that's consistent
with the law as stated.
Mr. King. You had stated that you're not a policy person,
but I would still ask you a policy question, which is: If you
were going to design a census series of questions--I mean, I
understand you'd would want to, ask are you a citizen? Would
you also advocate for asking for, if you're a legal immigrant,
under what status is that legal position--say, a green card or
a visa or whatever the case may be? And then, from beyond that,
the omissions on that status if you're not legal would be,
then, an illegal.
Would you advocate for collecting all that data so we know
who is here and why?
Mr. Marshall. The simple answer is yes. You know, for us in
the claim that we have here and from a policy perspective, not
only would we want to know your citizenship but also whether or
not, if you're here illegally, have you overstayed your
welcome, in essence, the status you were granted, or have you
ever even been granted status in the first place. And by having
that information, it would allow us to do an appropriate
apportionment of those congressional Representatives and the
Electoral College.
Mr. King. And what I'm hearing in some of the statements
made up here on this panel, discussion about semantics rather
than policy. And I would advocate what you've described is the
policy we need to get to, regardless of how the semantics are
argued out here.
And I would point out a statement made by Ninth Circuit
Judge John Noonan in 1985 when he said this: ``If there were an
invading army on American soil, one does not suppose the Bureau
of Census would count the enemy troops,'' close quote.
Any comments on that, General?
Mr. Marshall. No, again, other than, as somebody who has
spent a career enforcing the law, I believe that we have that
responsibility across our country.
Mr. King. And I'd turn to Dr. Camarota for his comment
because I saw his facial expression.
Mr. Camarota. Yes, that would seem to not--you know, I'm
not a constitutional lawyer, but it does seem to violate the
spirit of, sort of, the Constitution to count an invading Army.
That's for sure. But, under the current rules, if they were
residing and that was their usual place of residence, of
occupation, I guess they would have to attempt to be counted.
Mr. King. We would have to draw a distinction between an
invading army and an unarmed invading group of illegal aliens.
My time has expired, but I want to give deference to Dr.
Murdock, who waved his hand. I don't expect the ranking member
will object.
Mr. Murdock. Okay. Yes, I think the thing here that's
important to understand from the standpoint of the Census
Bureau is the Census Bureau does very careful work. It tests
things to ensure that they, in fact, are responded to in ways
that are logical and which reflect their status--that means
citizen status--in a variety of ways.
I think what upset many of us that signed that letter that
you saw, the six of us, was that we really haven't had the time
or haven't taken the time--I won't fight over that--to evaluate
these questions the way we evaluate every question, not just
these questions but other questions on other elements that are
involved.
And so what the Census has been asking for or suggesting is
that, if we want the same accuracy with those kind of questions
that we have with others, we need to allow the testing and
other procedures to be performed with the Census.
Mr. King. Thank you, Dr. Murdock.
Mr. Murdock. These have come late in the process.
Mr. King. Thank you.
The chair would now recognize the ranking member, Mr. Cohen
of Tennessee.
Mr. Cohen. Thank you, sir.
Dr. Murdock, do you know what findings were made to support
the conclusion that adding the citizenship status question
would help enforce section 2 of the Voting Rights Act or other
laws that protect the voting rights of racial minorities? Do
you know whether research was conducted and whether the
research and findings were released publicly?
Mr. Murdock. Well, the Census is looking into some of these
issues right now. The issue, as people have indicated, has been
there for some time, but the problem is not so much the item
but introducing it into the process where we are.
Understand that we are, in census terms, very close to the
next census, and we will therefore have a census form, some
questions of which have been used and tested, et cetera, and,
on the other hand, items that most of us who are former Census
Directors would argue require additional research and analysis
before they're implemented.
Mr. Cohen. Do you believe the fact that citizenship has
been asked on the ACS suffices to test the question for
inclusion on the decennial form?
Mr. Murdock. You know, the ACS is a very valuable data
collection source for lots of reasons. It does not replace, you
know, what you want to obtain in terms of information for
issues, other kinds of issues.
This requires--and I think most of us as Census Bureau
Directors would say this--this requires an assessment and a
testing process. This should be treated like other elements on
the census form. And as Census Directors, what we are arguing
is that, if you do not do that, things will occur that will be
difficult for you to ameliorate.
Mr. Cohen. Many in the civil rights and voting rights
communities have been concerned since the Shelby v. Holder
decision that section 2 of the Voting Rights Act needs to be
restored, that the Voting Rights Act has lost much of its
importance.
Can any of you tell me which organizations--and they would
be the organizations, naturally, to speak up, civil rights or
voting rights advocates--have requested pushing for citizenship
status as a way to help enforce section 2 of the Voting Rights
Act? Which groups have done that? Can anybody help me with
that?
Mr. Adams. Mine has. My group has done that.
Mr. Cohen. And have you participated in bringing actions
under the Civil Rights Act?
Mr. Adams. Yes.
Mr. Cohen. Which actions have you brought?
Mr. Adams. A number of them. Davis v. Guam. We've brought
more than two dozen cases relying on census citizenship data.
My testimony got into great detail on that point.
Mr. Cohen. Thank you.
General Marshall, has Alabama been a party to any section 2
cases where they have been the initiating party?
Mr. Marshall. Mr. Cohen, I'm not aware of that
specifically, but I'll be glad to be able to provide a written
reply if we determine that----
Mr. Cohen. Would having citizenship information on 100
percent of the population improve the enforcement of section 2
in Alabama?
Mr. Marshall. Again, I can't comment on that, but I'll be
glad to provide written testimony.
Mr. Cohen. Thank you, sir.
Is Roger Bedford alive and well?
Mr. Marshall. He is alive and well, yes, sir. I will be
glad to send him your regards.
Mr. Cohen. Please. We've known each other a long time.
Thank you.
Dr. Murdock, are there any other things you'd like to
comment on?
Mr. Murdock. Excuse me?
Mr. Cohen. Would you like to comment on any other----
Mr. Murdock. Only as a former Census Director, when you
look at the processes that the Census has implemented, for this
issue or many others, these are tried and true processes for
the evaluation of information or questions that you want to use
in the census and similar kinds of procedures.
So I think for most of us, all of us, in fact, signing that
letter as Directors, our concern was not to change the pattern
and suddenly start putting in issues that might be politically
popular or unpopular but which have not been tested in the very
strict, empirical kind of way that census data questions and
issues are normally tested.
Mr. Cohen. Thank you.
And I yield back.
Mr. King. The gentleman returns his time.
The chair would now recognize the chairman of the full
committee, Mr. Goodlatte from Virginia, for his questions.
Chairman Goodlatte. Thank you, Mr. Chairman.
Attorney General Marshall, what do you believe is Congress'
role in rectifying the concern that you raise in the State's
lawsuit?
Mr. Marshall. Mr. Chairman, I think you have a couple of
functions.
Number one, you obviously exercise congressional oversight
of the Census Bureau, and so you have the ability to inquire
and engage in the discussion that we hear about today.
Specifically for us in Alabama is this issue of the inclusion
of information for purposes of congressional apportionment.
You obviously are that body that makes law. You have the
ability to be directly involved in being able to change our
statutes to make sure that we can rectify what we believe is an
unconstitutional act by the Census Bureau in the adoption of
this rule itself.
And then, beyond that, I think, to be very much engaged in
the litigation that we're involved with, to be able to see that
Congressman Brooks has taken a bold statement to be able to
make sure that we're going to stand for the rule of law. And
you have the ability to stand with that as well.
Chairman Goodlatte. Your complaint alleges a number of
legal theories as to why illegal aliens should not be counted
for purposes of apportionment. Which do you believe a court
will find most compelling?
Mr. Marshall. Mr. Chairman, I'm a litigator, so I'm not
going to concede anything. Having said that, I do think that
the APA violations specifically are the most straightforward
allegations, specifically that when the rule was proposed that
there were comments made specifically relating to the
allegations that we make in the complaint, and there was no
response to those comments at all.
Chairman Goodlatte. Would you give us a little more detail
on the Administrative Procedures Act?
Mr. Marshall. Specifically two allegations, one of which is
the adoption of the rule itself was arbitrary and capricious,
and that relates to the failure to be able to comment on that
rule itself, but we also believe the Census Bureau exceeded
their statutory authority when they adopted the rule to begin
with.
Chairman Goodlatte. And how do you distinguish your suit
from the case that the U.S. Supreme Court considered in Evenwel
v. Abbott?
Mr. Marshall. Two very specific grounds. Number one is that
that case involved an intrastate question. It was not
challenging it in a broad basis but actually within the State
itself. And what we have seen is the Supreme Court has given
great deference to intrastate issues in this area, as opposed
to those that affect a national basis like we have here. And we
believe, for those two very specific reasons, that case is
distinguishable from the action that we filed.
Chairman Goodlatte. Thank you.
Mr. Adams, the attorney general's Alabama lawsuit against
the Census Bureau argues that, by including illegal immigrants
in its count of the population, the Census Bureau is depriving
that State, along with other States with relatively low numbers
of illegal immigrants, of representation in the U.S. House of
Representatives and also votes in the Electoral College that
determine who is elected President.
Can you elaborate more on the unfairness of that current
situation with regard to these States?
Mr. Adams. Thank you, Chairman Goodlatte.
Americans should be electing American leadership. And it is
undeniable that that situation that you described is occurring.
I think both sides of the aisle would agree that some States
are getting more electoral votes because aliens are being
counted for apportionment.
Now, is that something that most Americans are happy with?
I would venture to say that's something that they would
disagree with strongly.
Chairman Goodlatte. Mr. Camarota, how does the current
system disincentivize States with large illegal alien
populations from cooperating with Federal immigration
authorities?
Alabama's lawsuit argues that including illegal immigrants
in the census will likely cause it to unfairly lose part of its
share of the almost $700 billion distributed each year by the
Federal Government in grants and other funds.
Can you describe why it is unfair to financially penalize
States that have fewer illegal aliens?
Mr. Camarota. Right. So the bottom line is that political
influence, as well as funds, is distributed based on the
results of a census. So if you have people who are not supposed
to be in the country but are residing in a State, the State has
every incentive for them to be counted. So it means more money
for the State. It means more political influence in Congress.
It means more political influence over who elects the
President.
So the incentives are certainly all on one side for the
State with the large illegal population; that's for sure.
Chairman Goodlatte. Thank you, Mr. Chairman. I yield back.
Mr. King. The chairman returns his time.
The chair would now recognize the gentleman from Maryland,
Mr. Raskin, for 5 minutes.
Mr. Raskin. Mr. Chairman, thank you very much.
Let's see. I thought I would start with you, Attorney
General Marshall. Welcome, and thank you for your testimony.
As I understand it, your argument is that the Constitution
forecloses the ability to ask about the presence of noncitizens
in the country. Is that right?
Mr. Marshall. No. What our litigation specifically is about
is the use of illegal aliens in the count for purposes of
congressional apportionment.
What we believe is that those who are in this country
either exceeding their lawful authority or who do not come into
this country legally in the first place should not be counted
specifically for purposes of congressional apportionment as it
relates to not only the Members of this body but also for the
Electoral College.
Mr. Raskin. Okay. And so I guess I come back to a question
the chairman asked. It seems like the Supreme Court ruled on
this in Evenwel v. Abbott, where it said that the plaintiffs
had no basis to challenge the decision to apportion
Representatives based on total population rather than citizen
voting age population.
And I don't quite know how the interstate/intrastate
argument affects the fact that the Supreme Court has precluded
your argument, but maybe--can you illuminate that?
Mr. Marshall. Again, I mean, we could be here for a while,
probably, to be able to distinguish that. And I'll be glad to
provide additional written testimony that shows specifically
why we believe that that case is distinguishable where we are.
But I do think that the intrastate and interstate
distinction is critical based on prior precedent in how the
court has carefully scrutinized those issues.
Mr. Raskin. Okay. Let me ask you this: Do you consider
yourself an originalist in terms of constitutional
interpretation?
Mr. Marshall. Yes.
Mr. Raskin. Okay. Do you know that the original censuses,
which were created basically by the same people who wrote the
Constitution--Madison, Jefferson--did not include any question
on aliens or citizenship?
Mr. Marshall. I think also--and, again, this is one where
we can provide additional written testimony--that we're
prepared to present as part of our litigation significant
history of that particular clause of the Constitution as well
as how it was interpreted going forward----
Mr. Raskin. Okay.
Mr. Marshall [continuing]. And we believe that it only
included those who were in this country lawfully.
Mr. Raskin. Okay.
The 1790--I just got the information from the Library of
Congress. The 1790 census had no question on citizenship,
immigration, or birthplace. The 1800 census had no question on
citizenship, immigration, or birthplace. And the 1810 census
had no question on citizenship, immigration, or birthplace.
So forget the last 60 years of practice, which is
consistent, that the original interpretation by the Founders of
the country and the Framers of the Constitution was not to
require that question. So that's just something you might think
about in terms of fleshing out the argument.
But let me pose a different kind of question, which is, are
you aware that for most of American history noncitizens could
vote in most of the States?
Mr. Marshall. Most of the States, but also there's a
distinction between Federal elections as well.
Mr. Raskin. Yeah. But in Federal and State and local
elections. In fact, the Republican Party was the great champion
of noncitizen voting. In the run-up to the Civil War, the
Republican Party took the position very strongly that
noncitizens had the right to vote. The Supreme Court repeatedly
authorized that, including in Minor v. Happersett.
And the Southern States, of course, opposed it; they were
opposed to noncitizen voting. And the very first article of the
Confederate constitution stated that you had to be a citizen in
the Confederacy in order to vote there, but that view lost
during the Civil War. And then after the Civil War, noncitizen
voting spread across the country.
The practice was called declarant alien suffrage, that if
you declared that you were planning to become a citizen, they
would give you the right to vote in most places.
But, generally, the view was, from the beginning of the
country, if you were white, you were male, you owned property,
your citizenship was completely irrelevant to whether or not
you had a right to vote.
So it just seems to me that you're trying to put a gloss on
the Constitution that was never there. Now, that might be good,
it might be bad. You know, we could rewrite it. But don't you
think the proper road to go for those who want to put a
citizenship question and want to impose the citizenship
requirement for voting, which has never been there, is to amend
the Constitution? Don't you think we need to do that?
Mr. Marshall. No. I think that--and our litigation will
establish clearly that that was the intent. And we believe that
the Federal judge will rule in our favor to be able to include
that information.
Mr. Raskin. Thank you.
Mr. Murdock, let me ask you, what's the usual process for
adding new questions to the census? Because a lot of us aren't
familiar with that. How does it work?
Mr. Murdock. Well, generally, what happens is there is a
need that is recognized by governmental and other entities to
provide information on a particular item. The census gets a
very large number of suggestions of things that they should
analyze, and----
Mr. Raskin. Is there an administrative process with notice
and comment----
Mr. Murdock. Yes.
Mr. Raskin [continuing]. And hearings and so on?
Mr. Murdock. Yes. They have a committee that--well, in
terms of the census, they have committees that they create----
Mr. Raskin. Okay. Has that taken place here or has that
process been short-circuited, with respect to this citizenship
question?
Mr. Murdock. I'm not sure about that particular question
right now, but it has historically been one that has been
examined very thoroughly.
Mr. Raskin. Well, what's different about this process is I
guess what I'm asking. Because you were saying that there's a
major process problem.
Mr. Murdock. Well, I don't believe there's a process
problem. There may be a timing problem, in terms of how long
we've been with a great emphasis on one particular view here.
Census tries not to be someone who is Democratic or Republican.
It sees itself as being an objective purveyor of information
and obtainer of information.
That requires that, when you have an issue that someone
brings up--and there are thousands of issues that people would
like put on census forms--the Census has committees then that
analyze this, reduce it to a small number of items that they
think fit within their mandate of what they're supposed to do.
And then they determine whether or not they want to, and in
many cases do, do their own tests of whether they can
accurately and adequately obtain information on that particular
item.
So the Census is very careful about adding items. They
don't just, you know, decide, well, wouldn't it be fun to know
X, Y, or Z. They have a very careful process. And it is a
neutral process----
Mr. Raskin. Thank you.
Mr. Murdock [continuing]. In terms of----
Mr. Raskin. Thank you for your indulgence, Mr. Chairman.
Mr. King. The gentleman returns his time.
And the chair would now recognize the gentlelady from
Georgia, Mrs. Handel.
Mrs. Handel. Thank you, Mr. Chairman.
And thank you to our distinguished panel today.
One comment, just to clarify things for anybody who might
be interested in reading the testimony from today and the
comments: Irrespective of what was taking place in terms of
voter eligibility in the 1700s and the 1800s, let's be
perfectly clear that, today, under current law, it is patently
illegal for a noncitizen to vote in a Federal election, period,
full stop.
To Dr. Camarota, when was the first time that the
citizenship question was asked in a census?
Mr. Camarota. 1820.
Mrs. Handel. Thank you. When was the last time it was asked
in a census?
Mr. Camarota. About 17 million people received it in 2000.
Mrs. Handel. All right.
Mr. Camarota. 17 million households. More people, but 17
million households.
Mrs. Handel. Would it be fair to say that asking about
citizenship or place of birth, including country of birth, has
been a fairly common practice in previous censuses?
Mr. Camarota. Either on the regular census or a very large
subset of the population. It's been the norm, yes.
Mrs. Handel. Okay. Great. Thank you so much.
And, Attorney General Marshall, thank you so much for being
here. Are noncitizens eligible to vote in Federal elections?
Mr. Marshall. No.
Mrs. Handel. So it's illegal for a noncitizen to vote.
Mr. Marshall. That's my understanding.
Mrs. Handel. All right. So, if noncitizens are ineligible
to vote in a Federal election, why would a noncitizen be
included in the formula for congressional apportionment?
Mr. Marshall. That's my question to you. And that's
specifically the question that we'll present to the Federal
judge, is not only does it dilute the authority of certain
States and their voters to be able to have an influence, it
obviously overstates the authority of other States that allow
people to be in this country and ignore the immigration laws.
Mrs. Handel. So would it be your opinion that if
noncitizens are ineligible by law to vote in a Federal election
and then are included in the reapportionment formula, that that
would indeed dilute not only the voting power of minorities
but, indeed, the voting power of all eligible voters?
Mr. Marshall. Yes. And, in fact, that will be a part of our
litigation.
Mrs. Handel. Super. Thank you so much.
And, with that, I'd like to yield my time to my
distinguished colleague, Representative Brooks, if the chair is
okay with that.
Mr. King. The chair would note that we haven't allowed that
policy in the past, our tradition on this committee, but I
understand your--I'd love to have Mr. Brooks speak, but we
would be breaking a long-established policy.
Mrs. Handel. All right. Thank you.
Mr. Brooks. Bummer.
Mrs. Handel. Then, with that, I will yield back.
Mr. King. The record will show the quote from Mr. Brooks
regardless: ``Bummer.''
So this concludes today's hearing.
And I want to thank the witnesses for your testimony, your
responses to the questions, and the written testimony that you
submitted.
I want to thank the members of this committee for engaging
in this. And I want to thank the people who came in and
listened to this hearing today.
And, hopefully, this moves us forward in a more
constitutional direction than we have in the past and----
Mr. Raskin. Mr. Chair.
Mr. King. The chair would yield.
Mr. Raskin. Can I just submit something for the record, a
Law Review article?
Mr. King. Hearing no objection--could you speak to what
that is, though?
Mr. Raskin. Yes. It is a Law Review article, written in
1993 in the University of Pennsylvania Law Review, called
``Legal Aliens, Local Citizens: The Historical, Constitutional,
and Theoretical Meanings of Alien Suffrage.'' And I wrote it.
Mr. King. Well, this would be an interesting thing for me
to read.
There's no objection heard by this chair. If so ordered, it
shall be entered into the record.
Mr. Raskin. Thank you very much.
[The information follows:]
This material is available at the Committee and can be
accessed on the committee repository at: https://
docs.house.gov/meetings/JU/JU10/20180608/108398/HHRG-115-JU10-
20180608-SD002.pdf; https://docs.house.gov/meetings/JU/JU10/
20180608/108398/HHRG-115-JU10-20180608-SD003.pdf.
Mr. King. Without objection, all members have 5 legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
This hearing is now adjourned. Thank you.
[Whereupon, at 10:16 a.m., the subcommittee was adjourned.]