Distortion in the Census: America's Oldest Gerrymander?

By Danahy, Molly; Lang, Danielle | The University of Memphis Law Review, January 1, 2019 | Go to article overview

Distortion in the Census: America's Oldest Gerrymander?


Danahy, Molly, Lang, Danielle, The University of Memphis Law Review


I. Introduction

In 1962, the Supreme Court entered the political thicket of redistricting to vindicate the principle of equal representation.1 And in 1964, the Court established the bedrock principle that redistricting must be done "on a population basis."2 This requirement-often dubbed the "one person, one vote" principle-has shaped our politics ever since. It cabined some of the most egregious gerrymandering of the moment but also shifted much of modern gerrymandering to strategic line-drawing rather than simple malapportionment.

Nevertheless, this basic rule of American democracy is, of course, only as good as the underlying population data it relies on. Nearly all states rely on decennial Census Bureau total population data to redistrict.3 But what happens when that data is not only imperfect (an inevitability) but also persistently biased in its imperfections?

In fact, the census, and accompanying apportionment, has consistently undercounted and distorted representation of minority communities throughout its history.4 Indeed, the Founders enshrined in our Constitution that an enslaved person would count as "three fifths" of a person for purposes of apportionment.5 This "compromise" not only dehumanized enslaved persons but also allowed the Southern states to accrue the benefits of additional representation based on a silenced and subjugated population of enslaved persons that the free Southern residents certainly did not meaningfully represent.

Section 2 of the Fourteenth Amendment explicitly repealed the three-fifths compromise. Nonetheless, the distortion of minority communities' representation has persisted in different forms. Decade after decade, the census disproportionately undercounts minority communities. This bias in the results is termed the "differential undercount."6 Moreover, the census also miscounts incarcerated individuals in their prison cells rather than their home communities.7 This practice also disproportionately impacts minority representation. Despite these representational harms, there has been little to no remedy for that undercounting and miscounting in the redistricting context.

As the 2020 Census approaches, it threatens to both repeat the mistakes of the past and exacerbate them. Despite near unanimous opposition in the public comments, the Census Bureau has chosen to continue miscounting incarcerated individuals in their jail cells rather than in their home communities in 2020.8 It is woefully underprepared to adequately count historically hard-to-count populations.9 And the Secretary of Commerce has elected to add a citizenship question to the 2020 Census form despite overwhelming evidence that it will exacerbate undercounts in immigrant communities.10 Much of the litigation and legal analysis on these matters is outside the right-to-vote and redistricting context-for example, claims under the Enumeration Clause11 or the Administrative Procedures Act12-but the equal representation principle looms large over all of them.

This Essay aims to frame matters of systemic census data discrimination as another form of gerrymandering. It will place some of the current issues facing the 2020 Census in the context of the fundamental right to vote and to equal representation; discuss the pressing threats to those rights raised by the 2020 Census; and argue that the legal and redistricting community should no longer treat decennial census data as inviolate and neutral in the face of compelling evidence suggesting otherwise.

II. The Census Count Is a Voting Rights Issue

Our Essay stems from an often unarticulated premise: the census count is a voting rights issue. Professor Pam Karlan has developed a framework for discussing the distinct but interconnected public interests that voting rights collectively serve: voting as participation, voting as aggregation, and voting as governance.13 Voting as participation is exactly as it sounds: it is about "the right to cast a ballot that is counted. …

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