What Really Lies at the Heart of the Vitter-Bennett Census Amendment

By Julie Kirchner, Executive Director of FAIR

Despite some mischaracterization from certain sources, the controversy over the Vitter/Bennett Amendment to the FY2010 Commerce-Justice-Science Appropriations Bill is not over whether illegal aliens should participate in the 2010 census. There may be independent public policy reasons to estimate the illegal alien population via the census. Instead, this controversy centers on whether citizenship questions should be asked and whether this information should be used for the purposes of apportionment, the decennial determination of the number of seats each state gets in the U.S. House of Representatives and the Electoral College.

Since the first census in 1790, the questions on the census have changed over time, sometimes significantly, reflecting the changing times and the wish for different types of data. (Census Bureau: Uses for Questions on the Census 2000 Forms, p. I-1 (March 1998)) In 1940, out of fear that the census questionnaire was becoming too long and burdensome, the government began collecting certain data by sampling. That is, the Census Bureau sent a "short form" with the most basic questions to all individuals for what was called a 100 percent count, and it sent a "long form," which contained all the short form questions plus more, to a certain sample of the population. This sample population has varied, but constitutes roughly one in five households. (Census Bureau, Measuring America, p.127-128 (2002))

Although the census has often included some type of question on citizenship throughout its history (ten times out of twenty-two total), the current census does not conduct a 100 percent count on whether respondents are citizens of the United States. (Census Bureau, Measuring America, p.123-124 (2002)) Rather, since 1970, the question of citizenship has been relegated to the long form. In 2010, the citizenship question will not be part of the census at all as the Census Bureau will end the use of the long form and will instead collect that data, including citizenship, through an annual sampling process known as the American Community Survey. (See Population Reference Bureau, About the American Community Survey, April 2009)

For those who wish to reform our apportionment process so that seats in the U.S. House of Representatives and the Electoral College are based on citizenship (or at least on citizenship and legal permanent resident status), this change has significant implications. The Constitution requires that apportionment be based on the decennial count of persons--i.e., the census. (See U.S. Const. Art. I, § 2; 2 U.S.C. § 2a) If there is no decennial count of citizens on the census, the ability to reform the apportionment process may be thwarted.

Vociferous in their opposition to any measure that would help reform the apportionment process, amnesty advocates have argued that asking citizenship on the census would scare non-citizens from participating in the census. This argument is weak as citizenship-related questions have been asked on the long-form for the past four decades, and in the 100 percent count (short form) for decades prior. Moreover, amnesty advocates have generally accepted the accuracy of citizenship and immigration-related data collected through the American Community Survey, a survey conducted nationwide by the Census Bureau since 2005. (See Census Bureau, About the ACS: What is the Survey?)

Amnesty advocates also claim that reforming the Congressional apportionment process to exclude any part of the population (such as illegal aliens) would be unconstitutional. To support their argument, they point to Section 2 of the Fourteenth Amendment, which states: "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." (U.S. Const., amend. XIV, § 2.)

However, amnesty advocates conveniently ignore that the census has never counted all individuals present in the United States. From the first census through the Civil War and since, the census has only counted those persons considered residents. (Census Bureau, Congressional Apportionment--Historical Perspective) To do otherwise would require counting tourists, business travelers, and others not permanently living in the U.S. The result is that Congressional apportionment has never been calculated based on all persons within each state. In fact, in 1970, 1990, and 2000, the Census Bureau included U.S. military and civilian personnel, plus their dependents, stationed overseas. (Id.) Moreover, the Constitution does not proscribe the method of Congressional apportionment but rather has left that issue to be determined by statutory law, namely Title II of the United States Code. (Id.) Over the course of U.S. history, there have been at least five different ways of calculating Congressional apportionment. (Id.)

Unfortunately, the result of our current system is that the allocation of seats in the U.S. House of Representatives and the Electoral College is determined using the illegal alien population. This is fundamentally unfair and dilutes the votes of U.S. citizens. The Vitter/Bennett Amendment, while addressing only the first step of enumerating the U.S. population, clears the way for true reform to take place and should be adopted.