Friday, October 9, 2009



October 9, 2009 No.78

Sponsors hope to exclude undocumented residents
from apportionment counts; Vote set for next week

Census, apportionment, and redistricting could be delayed

Congress should not allocate any more funds for the upcoming 2010 decennial count unless the U.S. Census Bureau adds a question to the census form, asking respondents to report if they are citizens and legal residents, according to an amendment offered on the U.S. Senate floor this week. The sponsors said they believe it is "absolutely crazy" for the census not to include such questions and for congressional apportionment to include undocumented residents who live in the United States.

Sen. David Vitter (R-LA) and Sen. Robert Bennett (R-UT) made their proposal Wednesday during debate on the Fiscal Year 2010 Commerce, Justice, and Science Appropriations bill (H.R. 2847), which includes money for the Census Bureau. The $65 billion spending measure, approved by the Senate Appropriations Committee in July, would allocate $7.1 billion for Periodic Censuses and Programs, most of which pays for final census preparations and operations in the fiscal year that started October 1. The life-cycle cost of the 2010 census is an estimated $14.3 - $14.7 billion; historically, about half of the ten-year cost of research, design, testing, preparation, and implementation is spent in the census year.

Census, apportionment, and redistricting could be delayed: Changing the content of the questionnaire now is likely to delay implementation and completion of the census. Sen. Barbara Mikulski (D-MD), chairwoman of the Senate appropriations subcommittee responsible for the Commerce Department, noted "the importance of the census being taken every 10 years" and said the Census Bureau "right now is under serious duress."

Article I, section 2, of the U.S. Constitution (as modified by the Fourteenth Amendment) requires a census every ten years; delaying the count beyond 2010 could violate that provision. The Census Act (13 U.S.C. §141) sets Census Day as April 1. The Census Bureau must report the total population of each state to the President by December 31, 2010 (nine months after Census Day), for the purpose of reapportioning seats in the U.S. House of Representatives. The President certifies and delivers the resulting apportionment to the Clerk of the House in early January of the year following the census.

The Census Act also requires the Census Bureau to publish detailed population counts for each state, for the purpose of congressional redistricting, within a year after Census Day (e.g. by April 1, 2011); some states also use the detailed (e.g. block level) census numbers to redraw their state legislative districts in time for elections in 2011. The new apportionment and congressional district boundaries take effect for the 2012 elections. Congress failed to reapportion seats in the House of Representatives only once, following the 1920 census, when the new data showed a substantial demographic shift from rural to urban areas. In 1929, Congress enacted a new apportionment law, making allocation of seats after each census automatic, according to a mathematical formula, unless Congress expressly rejects the apportionment by passing a bill.

The Census Act (13 U.S.C. §141(f)) requires the Census Bureau to submit to Congress, three years before Census Day (April 1), the topics it will cover in the census. The bureau must submit the actual questions two years before Census Day. The lengthy lead time recognizes the need to field test the questionnaires in a census-like environment during a Census Dress Rehearsal, which traditionally takes place in the eighth year of each decade. No member of Congress objected to the content or question wording when the Census Bureau submitted its proposal for the 2010 census. Prior to the content submission, the Census Bureau tested questionnaire wording, formatting, and design in the field in 2003, 2004, 2005, and 2006.

Printing of more than 180 million questionnaires is well underway, taking up most of the nation's printing capacity, according to recent congressional testimony from Census Director Robert Groves. Census forms are printed in six languages, including English; there also will be a targeted replacement questionnaire and bilingual census forms for the first time. The census count starts in remote Alaska at the end of January 2010.

In their remarks explaining the amendment, Sens. Vitter and Bennett suggested that the ongoing American Community Survey (ACS), which replaced the census long form, already includes questions that distinguish whether respondents are in the country legally or not. However, the ACS, implemented nationwide in 2005 and sent to roughly three million addresses a year, only asks respondents whether they are U.S. citizens and if they were born in the United States or naturalized; it does not ask for any further information about legal status.

Promotional materials prepared for the 2010 census -- including fact sheets; print, television, and radio advertising; and Census in the Schools information -- highlight the ten questions on the census form and the slogan, "10 questions, 10 minutes," as well as the absence of any questions on a person's citizenship or legal status. The Census Bureau has already prepared assistance guides in 59 languages and instructional materials for the 1.2 million temporary census workers who will help conduct the count next spring. Data capture and processing software also were designed specifically for the 2010 census questionnaire and may have to be reconfigured or replaced.

Sen. Bennett suggested that the Census Bureau "could print an extra sheet or an extra card" or an "errrata sheet" to add the new question on citizenship and legal status. Sen. Mikulski expressed concern about the simplicity of "print[ing] one more piece of paper. ... Everything we do that affects the census at this point presents a logistical and financial challenge that borders on ... a nightmare."

Constitutionality of excluding non-citizens in question: In remarks on the Senate floor, Sen. Vitter said, "There are many States that will lose representation from what they would otherwise have if illegal aliens are counted in congressional apportionment." He singled out Indiana, Iowa, Louisiana, Michigan, Mississippi, North Carolina, Oregon, Pennsylvania, and South Carolina, saying that a vote against his amendment would be a vote "against the interests of your State." The senator did not cite a source for his assertion that these states would gain congressional representation if the census included a question on legal status and if the apportionment base subsequently excluded people in the country unlawfully.

A memorandum prepared last month by the Congressional Research Service for Rep. Carolyn Maloney (D-NY), a member of the House census oversight subcommittee, concluded that unauthorized aliens have never been excluded from the census counts used for apportionment and that the term "persons" in the Constitution's apportionment clause "is not limited to 'citizens', as the Framers would have likely used that term instead had it been their intent."

Sen. Bennett recently introduced legislation (S. 1688) to require a check-box on the census form to determine if respondents are U.S. citizens or legal residents. The senator, whose state lost a seat in Congress after the 2000 census, called the apportionment process "broken and unfair." According to most independent apportionment projections, Utah will most likely regain the fourth congressional seat it lost ten years ago. (See, for example, analyses by Election Data Services at and Polidata at Both companies are members of the Census Bureau's 2010 Census Advisory Committee.) The state filed two unsuccessful federal lawsuits after the last census, challenging the Census Bureau's use of statistical methods to impute people not directly counted into the census and the policy of not counting private American citizens, such as Mormon missionaries, living overseas during the census.

Census News Briefs and Census News Flashes are prepared by Terri Ann Lowenthal, an independent legislative and policy consultant specializing in the census and federal statistics. All views expressed in the News Briefs are solely those of the author. Please direct questions about the information in this News Brief/Flash to Ms. Lowenthal at Please feel free to circulate this document to other interested individuals and organizations. Previous Census News Briefs are posted on The Census Project web site at

Phone: 203-353-4364

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