When the Counting Stops, Controversy Begins: Professor Nathaniel Persily Examines Law of the Census

New York, Jan. 24, 2011—When the U.S. Census Bureau released the nation’s population count last month, it set off another once-in-a-decade battle over which states will benefit from the ever-changing numbers and which will lose clout on Capitol Hill.

 

Breaking down those numbers is nothing if not a complex task, as census data determine the representation of communities in Congress, and, later, how voting rights disputes concerning redistricting are settled. To sort through those hot-button issues, Columbia Law School Professor Nathaniel Persily, a leading political scientist, analyzed the law of the census and the politics of counting in an upcoming law review article.

 

“The census isn’t perfect. It doesn’t count everyone, and it counts a lot of people twice,” said Persily, the Charles Keller Beekman Professor of Law and Professor of Political Science. “But it’s extremely important that we have as accurate a census as possible, so we can use it in all sorts of public-policy decisions, including redistricting.”

 

Exactly who to count and how to count them has evolved since the Constitution was first written. It states that the census would be used to determine the number of congressional seats and the amount of taxes apportioned to each state. That included counting slaves as three-fifths of a person.

 

The 308,745,538 resident population total released by the Census Bureau on Dec. 23 purports to count everyone regardless of his or her citizenship status. In turn, the 435 Congressional districts, for the most part, are divided by population, not by the number of citizens eligible to vote. How the census counts people and where it counts them has led to a flurry of lawsuits over the years.

 

“In each of the last four censuses, some jurisdiction has gone into court to argue about the illegality or constitutionality of the method of counting the population and claim they have been deprived of representation,” Persily said.

 

The Census Bureau does not ask all households about citizenship in its decennial survey. That question only comes up in the bureau’s annual American Community Survey, sent to 2.5 percent of households. Persily said that has raised questions about the reliability of estimates when voting rights cases have been litigated, particularly in cases where groups sought to carve out predominantly minority districts.

 

“You have a legal standard that requires a pretty fixed number—over 50 percent—but the census data are not nearly as accurate as the law would suspect them to be,” Persily said.

 

Because of the complexity and controversy behind their work, Persily said he has “incredible admiration” for census officials, who he said are in an “impossible position” as they cater to multiple constituencies with conflicting demands.

 

“What’s very challenging is that they view their job principally as providing data, but the process has winners and losers, so they have to do it in such a way that it appears non-partisan,” Persily said.

 

The article will appear in an upcoming issue of the Cardozo Law Review.

 

 

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