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Academic highlight: Levitt on the collateral consequences of Department of Commerce v. New York

On its face, Department of Commerce v. New York asks whether the government may add a question about citizenship status to the 2020 decennial census. But as Professor Justin Levitt explains in a forthcoming essay, if the government wins, the citizenship data could influence the allocation of representation in the state legislatures, raising a whole new set of constitutional questions left unresolved by the Supreme Court’s 2016 decision in Evenwel v. Abbott.

In 2018, the government announced that the 2020 census would include a question to determine the citizenship status of every person in the United States. A number of states, localities and civil rights groups challenged the addition of the citizenship question, arguing that the government’s reasons for including the question were unsound and were a pretext for discrimination, and that including the question would depress the response rate. The government responded by arguing that the challengers lacked standing, that the choice of census questions was unreviewable and that in any case the addition of the citizenship question was justified by the need to gather such data to enforce the Voting Rights Act. (Amy Howe provides a more detailed overview of the case.)

Levitt’s essay begins by reviewing the process by which the government added the citizenship question to the census, and then explains why doing so could lower the response rate, particularly among Hispanics or other groups fearing the consequences for immigration enforcement. The stakes are high: An undercount could lower federal funding and reduce representation for the states and localities affected. Levitt, a former Deputy Assistant Attorney General in the Civil Rights Section of the U.S. Department of Justice, also disagrees with the government’s assertion that citizenship data is needed to pursue litigation under the Voting Rights Act. As is clear from the briefing, as well as SCOTUSblog’s recent symposium on this issue, these are hotly contested issues.

In the last section of his essay, Levitt moves beyond these legal and factual disputes to explain how the outcome of the case could “fundamentally rewrite the terms of American representation” by facilitating changes in states’ method of drawing legislative districts. In Evenwel v. Abbott, the Supreme Court decided unanimously that the Constitution permits states to draw legislative districts of equal size based on the entire population, meaning that each district would have an equal number of people. But that decision left open the question whether states could draw districts, and thus allocate political representation, based on some other metric — such as citizenship or eligibility to vote.

To do so, states would need detailed and accurate information about the number of citizens in each district — data that is currently unavailable. As Professor Nathan Persily has explained, the only source for that data today is the American Community Survey, which is given annually to only 2.5 percent of households, and thus is not sufficiently granular to serve as a basis for drawing legislative districts throughout a state. If the government prevails in Department of Commerce v. New York, however, it will generate the missing citizenship data, enabling states to draw districts based on citizenship rather than population.

Levitt is opposed to such a change, arguing that drawing legislative districts based on anything other than total population requires embracing a theory of representation that excludes some groups, such as immigrants, felons, children or other nonvoters, all of whom must abide by state laws and regulations and pay state taxes. Theories of representation underlying the choice to draw legislative districts by population as opposed to by citizenship or eligibility to vote are highly contested as a constitutional and normative matter, dividing the justices as well as legal scholars.

The Supreme Court dodged that question in Evenwel, but depending on the outcome of Department of Commerce v. New York, it may have to answer it soon. As Levitt explains, in deciding whether noncitizens may be counted by the census, the court could lay the groundwork for a future case questioning whether, for purposes of political representation, they should count at all.

Recommended Citation: Amanda Frost, Academic highlight: Levitt on the collateral consequences of Department of Commerce v. New York, SCOTUSblog (Apr. 19, 2019, 12:00 PM),