How Congress can fix the census

This midterm season, Congress is focused on the workings of our democracy to a degree that’s unprecedented in modern American history. So far, though, these discussions have left out the census. The constitutionally required headcount is foundational to our system of political representation, and it’s on shaky ground, vulnerable to partisan manipulation and repeatedly failing to count everyone accurately. Congress can intervene now to shore up the census and ensure it fully accounts for everyone who lives in the United States.

The 2020 census showed — once again — that the bureau’s operations are susceptible to political manipulation. We saw last-minute attempts to change the questionnaire and other efforts to influence the count. As the norms protecting scientific independence from political pressure deteriorate, the risk of interference grows. And current census law gives politicians too much room to interfere. They can disregard the bureau’s judgments about conducting the count and manipulate or damage the census’s results.

Interference, combined with the pandemic and other challenges, imperiled the 2020 count. And it didn’t escape unscathed. Indeed, the Census Bureau’s own quality checks on 2020 show that this decade’s count missed 18.8 million people. Six states as different as Texas and Illinois suffered undercounts as high as 5 percent. And people of color once again went undercounted at disproportionate rates. Black, Latino, and Native American populations in particular were missed at unacceptably high levels, with each of their undercounts getting worse compared to 2010. Indeed, the Latino undercount rate tripled from 2010, hitting an abysmal -4.99 percent. Already low and stagnating response rates were exacerbated by deliberate political interference aimed at reducing the count of disfavored groups.

Undercounts pose fundamental challenges to the way our democracy works. The census determines how many seats each state gets in the U.S. House of Representatives, how state and local governments redistrict, and how more than $1.5 trillion in federal funding is distributed every year. When they’re undercounted, states risk losing representation in the House. Communities risk going underrepresented in state and local legislatures. And people risk losing resources they rely upon for everything from medical care to transport to education.

If the status quo continues, future censuses will fare no better with undercounts and many of the other problems that complicated the 2020 census.

Making the necessary changes will require time, and the clock is already ticking for 2030.

The bureau has just now put out the public call for suggestions to improve its work. Each decennial census takes years to plan, fund, and implement — an enormously complex process that has been called the country’s “largest peacetime mobilization.”

Congress can help fix things. In a new report from the Brennan Center, we lay out the ways that Congress can improve the law governing the count, starting with limiting future presidential interference — a problem that goes back several decades. A significant first step would be to establish the Census Bureau as its own executive agency outside the Commerce Department, led by a director with final decision-making authority. That would prevent political appointees from the Commerce Department from interfering in the bureau’s workings at the president’s request.

Congress could also task the Census Bureau director, rather than the president, with reporting the population numbers used for the apportionment of House seats to Congress, removing the president from that process.

And Congress could bar untimely and untested additions to the census questionnaire. This would prevent political actors in the executive branch from trying to rush potentially damaging questions onto the form.

Congress could also empower the bureau to collect data more accurately and equitably. Revoking the limits on the kinds of statistical methods the bureau can use to put the count together would give the bureau the legal flexibility it needs to choose the tools that will most accurately count the nation and reduce mass undercounts of people of color. Facilitating changes to the way the census asks about race, ethnicity, sexual orientation, and gender identity, moreover, would allow people to more easily and accurately report how they self-identify. That in turn will allow the bureau to produce data that better reflects the country’s diversity, ensures everyone’s funding needs are met, and makes communities of color more visible — and more empowered — when it’s time to redraw electoral districts.

Taken together, these changes would help insulate the census from political manipulation and free the Census Bureau from recurrent problems it has never squarely addressed. And they would ensure a more equitable distribution of the political representation and material support that flow from it. That would help ensure that the census is aimed at accuracy and equity and steered by science — not impaired by politics.

Kelly Percival and Madiba Dennie are among the authors of “Improving the Census: Legal and Policy Reforms for a More Accurate, Equitable, and Legitimate Count,” published by the Brennan Center for Justice at NYU Law. Percival is senior counsel and Dennie is counsel in the Brennan Center’s Democracy Program.