Census 2020 Legal & Strategy Brief

On Tuesday, January 15th, U.S. District Judge Jesse Furman ruled to direct Secretary Ross and the Commerce Department to remove the citizenship question from the 2020 census in the cases in the Southern District of New York Court.   

With this development, it seems like a good time to revisit some specific questions and concerns regarding the census, including the citizenship question, its potential impact on immigrant and hard-to-count communities, and community organizing considerations.

The Asian Americans Advancing Justice - Asian Law Caucus recently published a Legal & Strategy Brief as a resource for organizations concerned about the citizenship question. We have provided some key information from the brief below, but be sure to download the full version for further detail. 

What is the timeline for litigation on the citizenship question? 
The printing of Census forms and related mail materials is scheduled to begin in summer 2019, meaning appeals must be expedited so they are resolved by then.
  
What are the confidentiality protections? 
There are extremely strong protections for Census data. The Census Bureau, the Commerce Department (which houses the Census Bureau), and their employees may not reveal personally-identifiable data that they have gathered through the Census to anyone, a restriction that prohibits sharing information with federal agencies, immigration authorities, law enforcement, or courts of law. Employees with access to protected data are sworn to keep information confidential for life. Wrongful disclosure can result in a fine of up to $250,000, imprisonment up to five years, or both. 

The law also states that neither the Census Bureau nor any other federal department is permitted to use Census data for any purpose other than statistical analysis. Many respected nonprofit and civil rights partners have great confidence in these data confidentiality protections, and feel that concerns about data confidentiality should not stop anyone from participating in the Census.   

The data confidentiality protections in federal law mean the Census Bureau cannot provide individual Census responses, or data that can be linked to identifiable individuals or households, to other agencies of the federal government or other entities. The Bureau can and does release aggregate information (i.e. statistical datasets) about populations and communities: as long as Census tabulations and data sets do not identify specific individuals, they do not violate the law.  However, in some rare instances, the release of aggregated data can raise concerns.

For example, following the Sept. 11, 2001 attacks the Census Bureau provided aggregated data to the Department of Homeland Security (at DHS’s request) on how many Arab Americans resided in certain zip codes. Following this incident, the Census Bureau, in consultation with stakeholder organizations, put in place new policies for providing special tabulations that could be viewed as sensitive in nature to federal agencies or other entities.   

What are the consequences on non-participation?
Technically, Census response is required by law. If a community member refuses or “willfully neglects” to participate in the Census—whether by skipping a single question or the Census as a whole—they can be found guilty of an infraction and fined up to $5,000. This is not likely to actually happen: according to the Census Bureau, no one has been prosecuted since 1970 for failing to fill out the Census. By contrast, a likely consequence of non-participation is a visit by an enumerator, who will seek to obtain missing information from the household. 

Despite the fact that Census enumerators are not law enforcement or immigration officials—in fact, enumerators are often community members hired from the communities in which they canvass—they are still representatives of the federal government. That may make an enumerator visit to the home a troubling and fear-inducing prospect for many of our community members. Not responding to the Census at all likely guarantees an enumerator visit.

Responding to the Census, either online or by paper form, but leaving certain questions blank, could lead to an enumerator visit. We do not know how many skipped questions will trigger a visit by an enumerator; senior Bureau officials have said it is highly unlikely that skipping the citizenship question alone will result in an in-person enumerator visit. The more questions that a household skips, the more likely it is that Census Bureau staff will try to get missing information by phone or in-person.   

What are the consequences for a non-citizen who lies on the Census? 
Under the Census Act (Title 13, U.S.C.), it is a crime for any person—U.S. citizen or noncitizen—to lie on the Census. If someone lies on the Census, they can be fined up to $5,000. Enforcement of this law is very unlikely. Beyond the criminal consequences of the Census Act, there could also be adverse immigration consequences if a non-citizen is found to have made a false claim of citizenship. This is also very unlikely, as the Census Bureau’s priority is counting people, not immigration enforcement, and confidentiality rules prevent the Bureau from sharing individual Census responses with the agencies that do immigration enforcement. In fact tens of thousands of individuals misrepresent themselves as citizens on other surveys administered by the Census Bureau every year, with no consequences. Nevertheless, it is a fact that lying on the citizenship question comes with the risk, however remote, of severe immigration consequences.  

What are the response options? 

A. Can a community member skip a question when responding to the Census via the online form? Yes. Senior Census Bureau officials have confirmed verbally at several public meetings that community members will be able to skip questions on the online Census form and still submit the form, though the online interface will likely encourage respondents to answer all Census questions before allowing them to submit a partial response. The acting director of the Census Bureau, Ron Jarmin, told lawmakers that an individual who skips a question on the Census will still be counted.

B. Can a community member skip a question when responding to the Census via the paper form? Yes. They can simply leave that field blank.   

C. Can a community member skip a question when responding to the Census via an enumerator at their home? Yes. According to Census planning documents, one of the answers an enumerator may select when filling out a Census form with a respondent is “Don’t Know/Refuse.” While enumerators will likely encourage respondents to answer each question, and may tell respondents that a response to each question is legally required, enumerators are not authorized to require or force respondents to answer. 

D. Can a community member skip a question when responding to the Census via the Census Bureau’s telephone hotline? Current Census planning documents do not address directly how CQA staff will handle telephone respondents who do not want to answer all questions. However, because senior Census Bureau officials have said that the Bureau will accept online and paper Census forms with missing answers, we believe it is likely that the same protocols will apply to telephone responses. The Census Bureau has specified that CQA phone operators may need to provide “special messaging” to callers who express concerns about the Census or have heard negative publicity about the Census.

E. Can a community member submit their Census information without including an address? No. Some community members might be willing to respond to the Census but hesitant to provide their address information, because of a concern that the federal or local governments will use their address to find them or their family members. It is important to keep in mind that the Census must count people and put them correctly in a specific location (i.e. address), in order to produce useful, accurate datasets for the fair allocation of political representation and government resources. Therefore, a respondent must provide a valid address that the Census Bureau can match to its Master Address File when submitting a Census form through any mode.

If a community member responds to the Census online using their household’s unique Census ID, that response will be automatically tied to a specific address. If the community member does not have their unique ID and goes online to respond to the Census, they will be required to enter a residence address, which the Bureau must then match to its master file or send to its field operation staff to verify the existence of a housing unit at that address. If the community member answers the Census over the phone, the CQA phone operator will ask for a Census ID or an address for the same reason. 

Community organizing considerations

A. What are the legal consequences for community groups that advise people to skip questions on the Census or to not respond at all? Nonprofit organizations that advocate for partial or full nonresponse could risk scrutiny of their 501(c)(3) status. An organization can lose its 501(c)(3) status if it is responsible for the “conduct of illegal activities to a substantial degree”; even “planning and sponsoring” illegal acts could lead to loss of status. Publicly advocating for community members to skip a Census question, which is technically a federal crime, might qualify. Any nonprofit organization that wants to help community members mitigate risk associated with the Census should be cognizant of the potential consequences of being on record as encouraging nonresponse and of putting their support for nonresponse in writing. 

There is also a remote possibility of criminal consequences. Legally, any person or entity that indirectly or directly provides information, advice, or assistance to the Census Bureau with the intent of causing an inaccurate Census count can be fined up to $100,000 ($200,000 for an entity), face up to one year in prison, or both. It is not clear that this law would apply to an organization that encourages nonresponse. The last time the government prosecuted someone under this statute was 1970.   

B. What are the potential results of a civil disobedience campaign in which respondents, regardless of citizenship status, do not answer the citizenship question?  A widespread choice by U.S. citizens and non-citizens to not answer the citizenship question would have a number of impacts. Some have problematic consequences for future voting rights advocacy and enforcement.  While some advocates have argued such a campaign could be viewed by non-citizens as a powerful sign of solidarity from their allies, the cost of widespread nonresponse likely outweighs the benefits. 
    
C. Can a community-based organization request a large number of paper Census forms? Can a community-based organization assist community members in filling out online and/or paper forms?  Community-based organizations cannot request paper Census forms in bulk for their community members to fill out. 

If community members bring their forms to community-based organizations, staff members at those organizations may help community members fill out their forms, to a limited extent. Staff members may sit next to community members to explain and/or translate questions on the Census form, but according to Census Bureau guidance, staff members may not actually fill out the form for community members, because it would undermine the legal protections that ensure the confidentiality of community members’ responses. 

A community-based organization could set up computers on which community members fill out the Census form online, and could have staff members assist, translate as needed, and watch over the process. But again, pursuant to Census Bureau guidance, staff members should not key in answers for community members. 

Download the full Legal & Strategy Brief here for information about Census language resources, enumerators, specific hard-to-count communities including those who are homeless or living in group homes or facilities. 

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